CONFLICT OF INTEREST

COUNTY COMMISSIONER EMPLOYEE OF COMPANY DOING
BUSINESS WITH VARIOUS LOCAL GOVERNMENT ENTITIES

To:        Charles J. LaMarca, Broward County Commissioner

SUMMARY:

A prohibited conflict of interest would be created for a county commissioner were he to be employed by a company providing services to the county or to constitutional offices of the county. However, a prohibited conflict would not be created were the company to provide services to other counties or to municipalities located within and without the county, provided that the company does not pursue providing services regarding situations where one or more of the other counties/municipalities and the county have combined, contracted, or cooperated with each other to provide services. CEO 88-21, CEO 89-51, and CEO 96-7 are referenced and CEO 12-12 is distinguished.¹

QUESTION:

Would a prohibited conflict of interest be created were a county commissioner to be employed by a company providing services to government entities located both inside and outside the county he serves as a commissioner?

Your question is answered as set forth below.

You relate that you are a member of the Broward County Commission and that you are contemplating becoming a part-time, salaried employee of a company that would provide contractual, or "contracted employee," services to county and municipal government entities located both inside and outside of Broward County. More particularly, you state that the company is interested in providing police services, fire services, clerical services, and a host of other services and functions which are normally, or historically, provided "in-house" via a government's use of its own employees.

Continuing, you state that the company will not do business with Broward County government (the portions of the government under the control, management, or administration of the County Commission), but that it would seek to do business with the government of counties other than Broward, with municipalities both inside and outside of Broward County, with the Broward County Sheriff's Office (BSO), and with other Broward County Constitutional Offices. Further, you relate that your company compensation would be as fixed salary only, with no commissions, no success fees linked to contracts with public agencies, no dividends, no profit-sharing, and no other in-addition-to-salary compensation.

As to your duties for the company, you state that you would oversee all aspects of business development and assist in growing the company, focusing on core deliverables such as increasing brand awareness, bringing in new customers and coordinating ensuring acceptable customer satisfaction, and managing multiple business initiatives in a startup environment. You state that you would manage complex contract negotiation and work with legal counsel, as required, that you would spearhead business development initiatives consistent with the company's overall strategy, and that you would engage in revenue generation and strategic partnerships development and management necessary to win early customers with limited support. You emphasize that you would not enter into negotiations or contracts with Broward County (County Commission) government, but that you would, at least potentially, enter into "cost savings" negotiations with Broward County Constitutional Offices, such as BSO. Finally, you state that you would market to municipalities, but that if there is a direct relationship between Broward County government and any consortiums (a combined association, concern, or endeavor of more than one government entity), then you would not pursue business with any such consortium.²

Sections 112.313(3) and 112.313(7)(a), Florida Statutes, are the provisions of the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes) which are most relevant to your inquiry. They provide:

DOING BUSINESS WITH ONE’S AGENCY.—No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer’s or employee’s spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer’s or employee’s spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer’s or employee’s own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator’s place of business or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes.]

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. [Section 112.313(7)(a), Florida Statutes.]

The first part of Section 112.313(3) prohibits you from acting in an official capacity to purchase, rent, or lease any realty, goods, or services for your own public agency from any business entity (e.g., a corporation or a company) of which you, your spouse, or your child, individually or in combination, holds certain ownership or governance/leadership positions. The second part of Section 112.313(3) prohibits you from acting in a private capacity to rent, lease, or sell any realty, goods, or services to your agency or to any agency of your political subdivision.

The first part of Section 112.313(7)(a) prohibits you from holding employment or a contractual relationship with a business entity, or with another public agency, if the business entity or agency is subject to the regulation of, or is doing business with, your public agency. The second part of Section 112.313(7)(a) prohibits you from holding any employment or contractual relationship, if the employment or contractual relationship would create a continuing or frequently recurring conflict between your private interests and the performance of your public duties or would impede the full and faithful discharge of your public duties.

We find that the prohibition of the first part of Section 112.313(3) is not applicable to the situation you present, inasmuch as you state that neither you, your spouse, nor your child would hold any ownership/leadership/governance position in the company; rather, you relate that you merely would be employed by the company. Regarding the second part of Section 112.313(3), we find that a prohibited conflict of interest would be created were the company to provide services to Broward County government based on any contact, negotiations, or similar "sales" efforts toward Broward County government on your part, inasmuch as we find that such efforts would constitute your "acting in a private capacity" to rent, lease, or sell services to your political subdivision or an agency of your political subdivision. See, for example, CEO 96-7, in which we said that "'acting in a private capacity' includes situations in which one personally is involved with the sale to one's political subdivision . . . ."³ Also, we find that were the company to provide services to Broward County government, that a prohibited conflict would be created under the first part of Section 112.313(7)(a), since you would hold employment with the company (a business entity) and the company would be doing business with the Broward County Commission (your public agency).

Similarly, regarding Broward County Constitutional Offices, such as Clerk of Courts, Sheriff (BSO), Property Appraiser, Supervisor of Elections, and Tax Collector, we find that a prohibited conflict would be created were you to market the company toward these Offices. Under the second part of Section 112.313(3), you would be acting in a private capacity for the company and the Offices are agencies of Broward County (your "political subdivision"⁴). See CEO 89-51 (county commissioner prohibited by Section 112.313(3) from selling printing services to sheriff's office).

However, we do not find that a prohibited conflict would be created under the first part of Section 112.313(7)(a) were the company to do business with the Constitutional Offices, inasmuch as the Offices would be agencies different from your public "agency." See CEO 88-21, in which we found that the agency of a county commissioner is the county commission. And, we do not find that a prohibited conflict would be created under the second part of Section 112.313(7)(a) were the company to do business with the Constitutional Offices. While the interface of a county commission and the same county's constitutional offices is too involved for the application of Section 112.316 for purposes of negating a conflict under Section 112.313(3), we do not find that the scenario you present compels a finding of a conflict under the second part of Section 112.313(7)(a). In this regard, we find that your situation is distinguishable from that of CEO 12-12, our recently-issued opinion in which we found that the second part of Section 112.313(7)(a) would be violated were a county commissioner also to be employed by the sheriff's office in the same county. In CEO 12-12, the commissioner would be employed full-time with the constitutional office of sheriff, itself. In your situation, you would be employed by the company only part-time and you would not be employed by any constitutional office, itself.⁵

As to business between the company and counties other than Broward, and as to business between the company and municipalities located both inside and outside of Broward County, we find no prohibited conflict. As to Section 112.313(3), we so find because the other counties and the municipalities are agencies and political subdivisions different from the Broward County Commission and Broward County--your agency and your political subdivision, respectively. As to the first part of Section 112.313(7)(a), the other counties and the municipalities would not be your public agency. Concerning the second part of Section 112.313(7)(a), we see nothing in the scenario presented indicative of a continuing or frequently recurring conflict or an impediment to the full and faithful discharge of public duty.⁶ While, as you state, Broward County has relationships with and cooperates with other counties and municipalities in a number of areas, we do not see these intergovernmental arrangements as amounting to a bar to your employment with the company, especially since you state that you (and, presumably, the company) would not pursue providing services regarding situations where one or more of the other counties/municipalities and Broward County have combined, contracted, or cooperated with each other to provide services.⁷

However, please note that you also should evaluate your proposed endeavor under the Broward County local ethics code, especially regarding your contact with cities or other government entities located within Broward County. This code is administered locally and not by the Florida Commission on Ethics.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on May 4, 2012 and RENDERED this 9th day of May, 2012.

____________________________________

Robert J. Sniffen, Chairman

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