CEO 88-77 -- December 1, 1988

CONFLICT OF INTEREST

COUNTY COMMISSIONER EMPLOYED AS DEPUTY CLERK OF CIRCUIT COURT

To: (Name withheld at the person's request.)

SUMMARY:

A prohibited conflict of interest would be created were a county commissioner to be employed as deputy clerk of the circuit court. Although Section 112.313(10), Florida Statutes, prohibits a county employee from holding office as a member of the county commission which is his employer, a deputy clerk is not an employee of the county commission but rather of the clerk of the circuit court. However, the responsibilities of the clerk of the circuit court as auditor for the board of county commissioners and the board's authority over the clerk's budget would create a conflict of interest for the deputy clerk serving as a county commissioner, in violation of Section 112.313(7), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created were you, a County Commissioner-elect, to continue your employment as Deputy Clerk of the Circuit Court in that County?

Your question is answered in the affirmative.

In your letter of inquiry and a telephone conversation with our staff you have advised that you are employed as a Deputy Clerk of the Circuit Court. You also advised that you are responsible for assisting the Clerk with the recording of documents such as deeds and mortgages, with the child support functions of the office, and with inputting into a computer the County Commission's bills and payroll for payment. Recently, you were elected as a member of the Board of County Commissioners. You question whether you may continue your employment as Deputy Clerk while serving on the County Commission.

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

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 employer while, at the same time, continuing as an employee of such employer. [Section 112.313(10)(a), Florida Statutes (1987).]

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

A clerk of the circuit court, however, is an independently elected constitutional officer pursuant to Article VIII, Section 1(d), Florida Constitution. The clerk's authority to appoint deputies is independent of the county commission.

The clerk of the circuit court may appoint a deputy or deputies, for whose acts he shall be liable, and the said deputies shall have and exercise each and every power of whatsoever nature and kind as the clerk himself may exercise, excepting the power to appoint a deputy or deputies. [Section 28.06, Florida Statutes (1987).]

Therefore, we conclude that as Deputy Clerk you are not an employee of the County Commission and that Section 112.313(10)(a) would not prohibit you from continuing as a Deputy Clerk.

The Code of Ethics also 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 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 county commissioner from being employed by an agency which either is doing business with or is subject to the regulation of the county commission, and also prohibits a county commissioner from having any employment that would create a continuing or frequently recurring conflict of interest.

When not otherwise provided by county charter or special law approved by the electors, the clerk of the circuit court serves as ex-officio clerk of the board of county commissioners, auditor, recorder, and custodian of all county funds. Article VIII, Section 1(d), Florida Constitution. Pursuant to Section 28.12, Florida Statutes, the clerk of the circuit court serves as clerk and accountant of the board of county commissioners. In addition, under Chapter 129, Florida Statutes, the board of county commissioners is responsible for reviewing the tentative budget submitted by the clerk, for requiring changes to be made in that budget, and for adopting a final budget.

The Florida Supreme Court considered the responsibilities of the clerk of courts and of the board of county commissioners in the case of Alachua County v. Powers, 351 So.2d 32 (Fla. 1977). There, the Court noted that in his capacity as auditor the clerk is required by law to refuse to sign and deliver a county warrant for an unlawful expenditure, even though approved by the board of county commissioners. Under Section 129.09, Florida Statutes, the clerk may be personally and criminally liable for failing to uphold this responsibility. In a more recent case, a district court of appeal stated:

The taxpayers look to the clerk's audits to shield them from the kinds of misuse of public funds that have recently surfaced in other Florida communities and in other jurisdictions. [W. and F. Limited v. Dunkle, 444 So.2d 554, 558 (Fla. 4th DCA 1984).]

With respect to the budget approval process, we have advised in CEO 87-6 that a county commissioner should not serve as a volunteer fire chief within the county. There, we noted that the commissioner's service as fire chief placed him in the position of being employed by an agency subject to the regulation of the county commission, as the county commission was responsible for adopting a budget for the volunteer fire department.

In our view, the auditing function of the clerk puts that office in the position of being a check or balance against the board of county commissioners to ensure the legality of county expenditures. This significant function should not be subject to allegations of conflict of interest which might arise because a county commissioner is serving as an employee of the clerk. Moreover, given the board's role in establishing the budget of the clerk's office, we are of the opinion that the independence and impartiality of a commissioner in that capacity should not be threatened by employment with the clerk's office.

Accordingly, we find that a prohibited conflict of interest would be created were you to continue your employment as Deputy Clerk of Circuit Court while serving as a member of the Board of County Commissioners. For purposes of this opinion we have assumed that as Deputy Clerk you are an employee of the Clerk and are not a public officer. We note that Article II, Section 5(a), Florida Constitution, prohibits one person from holding at the same time more than one county office. As we have no authority to interpret this prohibition in an advisory opinion, we suggest that you contact the Attorney General about this question.