APPLICABILITY OF F.S. 112.3136 ( STANDARDS OF CONDUCT FOR CHIEF
ADMINISTRATIVE/EXECUTIVE OFFICER OF POLITICAL SUBDIVISION)
TO CITY FINANCE DIRECTOR

To:        Name withheld at person's request (Marathon)

SUMMARY:

Under the particular facts presented regarding the particular governmental entity, neither a city's financial services firm nor the firm's personnel serve as a chief administrative or executive officer or employee of the city under Section 112.3136, Florida Statutes, and, therefore, that section is inapplicable. CEO 09-17 is referenced.

QUESTION:

Is a company contracted as a City's financial services firm serving as the City's "chief administrative or executive officer or employee," such that the company's officers, directors, chief executive officer, or employees are deemed "public officers" or "public employees" under Section 112.3136, Florida Statutes?

Your question is answered in the negative, under the circumstances presented.

By your letter of inquiry, we are advised that you inquire on behalf of the contracted finance director for the City of Marathon ("Finance Director"), who is a certified public accountant doing business as a for-profit professional corporation ("Company") which has contracted since 2003 to provide services as the City finance director, and that you seek guidance for the Company and its personnel as to the applicability of Section 112.3136, Florida Statutes, which provides:

STANDARDS OF CONDUCT FOR OFFICERS AND EMPLOYEES OF ENTITIES SERVING AS CHIEF ADMINISTRATIVE OFFICER OF POLITICAL SUBDIVISIONS.-The officers, directors, and chief executive officer of a corporation, partnership, or other business entity that is serving as the chief administrative or executive officer or employee of a political subdivision, and any business entity employee who is acting as the chief administrative or executive officer or employee of the political subdivision, for the purposes of the following sections, are public officers and employees who are subject to the following standards of conduct of this part:

(1) Section 112.313, and their "agency" is the political subdivision that they serve; however, the contract under which the business entity serves as chief executive or administrative officer of the political subdivision is not deemed to violate s. 112.313(3) or (7).

(2) Section 112.3145, as a "local officer."

(3) Sections 112.3148 and 112.3149, as a "reporting individual."

The intent of the law is not to subject all vendors or providers of services to governmental entities, and their officers and employees, to its enumerated ethics provisions, but rather to apply only in situations where the provider serves "as the chief administrative or executive officer or employee of a political subdivision." CEO 09-17. Therefore, your inquiry requires us to evaluate the Company/Finance Director's relationship with the City, in order to determine whether the Company/Finance Director is subject to the ethics provisions enumerated in Section 112.3136.

You relate that the Finance Director provides services typically provided by a finance director, which include revenue collection, capital program administration, investment administration, accounting, payroll, preparation of budgets, annual financial reports, and assisting auditors. You state that neither the Company nor the Finance Director serves as the chief administrative or executive officer of the City or as an employee of the City.¹ You also state that the Finance Director intends to acquire an interest in a limited liability company ("LLC") which is developing real estate within the City, with a conditional-use application pending, and which likely will enter into a development agreement with the City. Because we find that the Company's personnel are not "public officers" or "public employees" under Section 112.3136 and, therefore, the Finance Director is not subject to the ethics provisions enumerated in Section 112.3136, it is not necessary for us to determine whether the LLC's prospective agreement with the City would present a conflict of interest for the Finance Director if he were to acquire an interest in the LLC.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 25, 2014, and RENDERED this 30th day of April, 2014.

____________________________________

Morgan R. Bentley, Chairman

^[1] You relate that, under the City Charter, the chief administrative officer is the City Manager.