CEO 88-65 -- October 19, 1988

CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST

CITY-COUNTY PLANNING COMMISSION MEMBER EMPLOYED BY

CENTER RECEIVING FUNDING FROM PLANNING COMMISSION

To: Ms. Debra L. Romanello, Attorney for Hillsborough County City- County Planning Commission (Tampa)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were a city- county planning commission member to be employed by a state university center if the center were to receive matching funds from the commission for a study to be done under contract with another entity. Although Section 112.313(7) prohibits a public officer from being employed by an agency which is doing business with his agency, the term "doing business" has been interpreted to contemplate only situations where the parties have entered into some type of legal arrangement under which one party would have a cause of action against the other in the event of a default or breach. Under the circumstances presented, however, there is no contract or obligation flowing from the center to the planning commission. Because the center is a governmental agency, the planning commission member would not be required by Section 112.3143, Florida Statutes, to abstain from voting on the request for matching funds, although he would be permitted to abstain, at his discretion, as provided in Section 286.012, Florida Statutes.

QUESTION 1:

Would a prohibited conflict of interest be created were a city-county planning commission member to be employed by a state university center if the planning commission provides matching funds to the center for a study to be done by the center pursuant to a contract with a local museum?

Under the circumstances presented, this question is answered in the negative.

Through your letter of inquiry and subsequent correspondence we have been advised that Mr. Michael English serves as a member of the Hillsborough County City-County Planning Commission. The Planning Commission has been created by a special act to make planning recommendations to the County Commission, the municipalities in the County, and other public bodies regarding the growth and development of the County. The Planning Commission is responsible for preparing comprehensive plans and reviewing amendments to those plans, as well as for reviewing land development regulations proposed by local governing bodies. The Planning Commission is composed of 10 members who serve without compensation other than reimbursement for expenses.

You also advise that the subject Commissioner recently accepted employment with the Florida Center for Urban Design, a center which is affiliated with several State universities and which has been established by the University of South Florida pursuant to State University System guidelines. The Center was established primarily to provide graduate internship opportunities and to provide resources for communities and organizations focusing upon design, architecture, planning, and related problems of the urban and regional environment. The Center is funded partially by the University, but additional funds are generated through grants and both private and public sector contracts. All funds generated by the Center are paid directly to the University, which in turn pays the Center's expenses. The Director of the Center reports to the President of the University.

Prior to the Commissioner's employment with the Center, the Center appeared before the Planning Commission asking that it endorse an urban design study for publicly and privately owned properties located within an area of the City of Tampa. The Center and a City museum have received a $40,000 grant for this project from the National Endowment for the Arts which requires the Center to generate matching funds. Although the Center's request to the Planning Commission simply asked for a resolution of support for the urban design study, it is anticipated that the Center will come before the Planning Commission again with a request for a monetary contribution toward the project. Although matching funds may be requested from the Commission, the study will be performed pursuant to a contract between the Center and the City museum which would not involve the Planning Commission or involve the provision of any goods or services to the Planning Commission. The results of the study will be presented to the museum and the City, but not to the Planning Commission. Should the Commission provide matching funds, the Center would urge Planning Commissioners to serve on the steering and oversight committee which will direct the study.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), Florida Statutes (1987).]

This provision prohibits a public officer, such as a member of a planning commission, from being employed by an agency which is doing business with his agency. Given the Center's relationship to the University of South Florida and the definition of the term "agency" provided in Section 112.312(2), Florida Statutes, which specifically lists a "state university," we find that the Planning Commissioner is employed by an "agency," the University.

We previously have interpreted the term "doing business" to encompass situations where the parties have entered into some type of legal arrangement under which one party would have a cause of action against the other in the event of a default or breach. See CEO 86-2 and the opinions referenced therein. Thus, we advised in CEO 75-4 that a member of a commission should not be employed by a university press which had contracted with the commission for the production of a series of books. We also found in CEO 77-65 that a prohibited conflict would exist were a commission on which a university professor served to extend a grant to his university to enable him to edit and prepare a manuscript for publication. Here, however, there would be no contract and no obligation flowing from the Center to the Planning Commission were the Planning Commission to provide matching funds for the Center's project. For this reason we find that the Center would not be "doing business with" the Planning Commission for purposes of Section 112.313(7)(a), Florida Statutes. For a similar situation, see CEO 88-20, Question 3, involving a city donating in- kind services to a nonprofit corporation employing a city commissioner.

Accordingly, we find that no prohibited conflict of interest would be created by virtue of the Planning Commission member's employment with the Center were the Planning Commission to provide matching funds to the Center in connection with the urban design study.

QUESTION 2:

Is a city-county planning commission member prohibited by Section 112.3143(3), Florida Statutes, from voting on a request for matching funds presented by the university center which employs him?

This question also is answered in the negative.

Regarding voting conflicts of interest for local officials, the Code of Ethics for Public Officers and Employees provides in relevant part:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his 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. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one- acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes (1987).]

This provision prohibits a local official from voting on any measure which inures either to his special private gain or to the special gain of a principal by whom he is retained, unless that principal is an "agency" as defined in Section 112.312(2), Florida Statutes.

In CEO 88-20, Question 2, we advised that a city commissioner who was a school teacher was not prohibited by this provision from voting on matters affecting the school district which employed her. As we determined in our response to your first question that the Planning Commissioner is employed by an "agency," the University of South Florida, the rationale of CEO 88-20 clearly is applicable here.

Accordingly, we find that the Planning Commissioner is not prohibited from voting on a request for matching funds presented by the Center which employs him. If the Commissioner would prefer to abstain from voting on this matter, he would be permitted to do so under the terms of Section 286.012, Florida Statutes, which permits an official to abstain from voting when there is or appears to be a conflict of interest under one of the provisions of the Code of Ethics for Public Officers and Employees.