EMPLOYEES HOLDING OFFICE; CONFLICT OF INTEREST

COUNTY COMMISSIONER EMPLOYED BY COUNTY SHERIFF'S OFFICE

To:        Name withheld at person's request (Franklin County)

SUMMARY:

A county commissioner's employment with the sheriff's office in the same county would not violate Section 112.313(10)(a), Florida Statutes, but would violate Section 112.313(7)(a), Florida Statutes. CEOs 88-77 and 94-5 are referenced.¹

QUESTION 1:

Would Section 112.313(10)(a), Florida Statutes, prohibit one's holding office as a member of a county commission while continuing employment as a correctional officer employed by the county sheriff's office?

Question 1 is answered in the negative.

By your letter of inquiry, you relate that you are employed as a correctional officer (not a deputy sheriff) by the Franklin County Sheriff's Office and that you are planning on running for a seat on the Franklin County Commission. Further, you state that under the law governing sheriffs' offices and the operations of the Franklin County Sheriff's Office, the Sheriff is your ultimate supervisor and the only person who can hire, fire, promote, or demote Sheriff's Office personnel.

Section 112.313(10)(a), Florida Statutes, provides:

EMPLOYEES HOLDING OFFICE.—No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his or her employer while, at the same time, continuing as an employee of such employer.

This provision prohibits a county employee from holding office as a member of the county commission which is his or her employer while continuing as an employee of that employer.

However, a sheriff is an independently elected constitutional officer pursuant to Article VIII, Section 1(d), Florida Constitution, and a sheriff's authority to appoint deputies and select personnel is independent of the county commission. Chapter 30, Florida Statutes (Sheriffs), provides in relevant part:

Sheriffs may appoint deputies to act under them who shall have the same power as the sheriff appointing them, and for the neglect and default of whom in the execution of their office the sheriff shall be responsible. [Section 30.07, Florida Statutes.]

The independence of the sheriffs shall be preserved concerning the purchase of supplies and equipment, selection of personnel, and the hiring, firing, and setting of salaries of such personnel . . . . [Section 30.53, Florida Statutes.]

Therefore, we find that as an employee of the Sheriff's Office you are not an employee of the County Commission and that Section 112.313(10)(a) would not prohibit you from holding office as a County Commissioner while continuing as an employee of the Sheriff's Office. CEO 88-77 is in accord with our reasoning herein.

QUESTION 2:

Would a prohibited conflict of interest be created under Section 112.313(7)(a), Florida Statutes, were you to continue your employment with the Franklin County Sheriff's Office while serving as a member of the Board of County Commissioners of Franklin County?

Question 2 is answered in the affirmative.

Section 112.313(7)(a), Florida Statutes, provides:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.—No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee . . .; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties.

This provision prohibits, among other things, a county commissioner from holding employment that will create a continuing or frequently recurring conflict between his interests associated with the employment and the performance of his duties as a county commissioner, and prohibits a county commissioner from holding employment that would impede the full and faithful discharge of his public duties as a county commissioner.

We find that such a conflict and impediment will be created were you simultaneously to hold the positions of County Commissioner and that of an employee of the Sheriff's Office of the same County. A purpose of Section 112.313(7)(a) is to ensure that a public officer (e.g., a county commissioner) delivers objective performance of his public duties, unimpeded by concerns related to the interests of his employer; in essence, the statute recognizes that one cannot "serve two masters." Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982).

More particularly, given the role of county commissions in approving, amending, modifying, increasing, reducing, or scrutinizing budgets or proposed budgets of sheriff's offices, we fail to see how your objectivity or impartiality, as a County Commissioner, could remain intact regarding the budget process when you simultaneously would be dependent on the Sheriff's Office for your employment, its income, and its benefits. In this regard, it is important to note that Section 112.313(7)(a), unlike some other provisions of the Code of Ethics,² does not require any intentional, affirmative, corrupt, or evil conduct by a public officer. Rather, Section 112.313(7)(a) is preventive in nature, is concerned with "what might happen," and seeks, through disallowance of simultaneous positions-holding and similar relationships, to prevent even a "temptation to dishonor." Zerweck, supra.

Regarding the intersection of the potentially differing interests of sheriff's offices and county commissions regarding sheriffs' budgets, see the following provisions³:

Pursuant to s. 129.03(2), each sheriff shall annually prepare and submit to the board of county commissioners a proposed budget for carrying out the powers, duties, and operations of the office for the next fiscal year . . . . [Section 30.49(1), Florida Statutes.]

The sheriff, within 30 days after receiving written notice of such action by the board or commission, in person or in his or her office, may file an appeal by petition to the Administration Commission. The petition must set forth the budget proposed by the sheriff, in the form and manner prescribed by the Executive Office of the Governor and approved by the Administration Commission, and the budget as approved by the board of county commissioners or the budget commission and shall contain the reasons or grounds for the appeal. Such petition shall be filed with the Executive Office of the Governor, and a copy served upon the board or commission from the decision of which appeal is taken by delivering the same to the chair or president thereof or to the clerk of the circuit court. [Section 30.49(4)(a), Florida Statutes.]

The board or commission shall have 5 days following delivery of a copy of such petition to file a reply with the Executive Office of the Governor, and shall deliver a copy of such reply to the sheriff. [Section 30.49(4)(b), Florida Statutes.]

In other words, given the role of county commissions regarding sheriff's budgets, we are of the opinion that the independence and impartiality of a county commissioner in that capacity should not be threatened by employment with the sheriff's office within the same county. Our finding herein is in accord with our finding in CEO 88-77, in which we found that a prohibited conflict of interest would be created were a county commissioner to be employed as deputy clerk of circuit court.⁴

Accordingly, we find that a prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were you to become a Franklin County Commissioner while remaining an employee of the Franklin County Sheriff's Office.⁵

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 30, 2012 and RENDERED this 4th day of April, 2012.

____________________________________

Robert J. Sniffen, Chairman

^[1]Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).

^[2]For example, Section 112.313(6), Florida Statutes (misuse of public position).

^[3]See also the balance of Section 30.49, Florida Statutes, Section 30.50, Florida Statutes, Section 129.03, Florida Statutes, and Section 951.061, Florida Statutes.

^[4]You have stated to our staff that you believe that your abstaining from voting under Section 112.3143(3)(a), Florida Statutes, as to measures of the County Commission concerning the Sheriff's Office, coupled with the language of Section 112.313(5), Florida Statutes, serve to negate all ethics concerns arising from your employment with the Sheriff. We do not agree. Section 112.313(7)(a) is a provision separate from Section 112.3143(3)(a). Thus, we have found that compliance with the voting conflicts law, Section 112.3143(3)(a), does not obviate or negate a conflict based in Section 112.313(7)(a). And, nothing in the language of Section 112.313(7)(a) indicates that compliance with Section 112.3143(3)(a) creates an exemption from its application. See, for example, CEO 94-5. Also, caselaw finds that the Commission on Ethics has wide discretion to interpret Section 112.313(7)(a), and courts must defer to the Commission's interpretation unless it is clearly erroneous. Velez v. Commission on Ethics, 739 So. 2d 686 (Fla. 5th DCA 1999). As to Section 112.313(5), it modifies the voting conflicts law of Section 112.3143(3)(a) to enable public officers to vote on valid salary increases or benefits for themselves, when such increases or benefits derive from their positions as public officers (e.g., county commissioners). Section 112.313(5) does not modify Section 112.313(7)(a) and it does not address the lack of objectivity or "temptation to dishonor" occasioned by your simultaneous holding of both positions. Sections 112.3143(3)(a) and 112.313(5) provide, respectively:

VOTING CONFLICTS.—No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer’s interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.

SALARY AND EXPENSES.—No public officer shall be prohibited from voting on a matter affecting his or her salary, expenses, or other compensation as a public officer, as provided by law. No local government attorney shall be prevented from considering any matter affecting his or her salary, expenses, or other compensation as the local government attorney, as provided by law.

^[5]Information concerning the "dual office-holding" prohibition of Article II, Section (5)(a), Florida Constitution, is available from the Office of the Attorney General. That prohibition is not within our jurisdiction to administer.