CEO 83-61 -- September 22, 1983

CONFLICT OF INTEREST

DEPARTMENT OF COMMUNITY AFFAIRS EMPLOYEE SERVING ON REGIONAL PLANNING COUNCIL

To: Mr. John M. DeGrove, Secretary, Department of Community Affairs

SUMMARY:

No prohibited conflict of interest would be created were an employee of the Department of Community Affairs, Bureau of Local Government Assistance, to serve as a county's appointed representative on a regional planning council. Serving on the planning council would not violate Section 112.313(7), Florida Statutes, as the council does not regulate the Bureau of Local Government Assistance, the employee's "agency," and as the council is not doing business with the Bureau, although grants have been extended from the Department of Community Affairs to the planning council. Nor does it appear that a planning council member's employment with the Bureau would present a continuing or frequently recurring conflict of interest, because it would appear that such employment would benefit the planning council.

QUESTION:

Would a prohibited conflict of interest be created were an employee of the Department of Community Affairs, Bureau of Local Government Assistance, to serve as a county's appointed representative on a regional planning council?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. Linwood Herron is employed by the Department of Community Affairs as a Local Government Assistance Specialist in the Bureau of Local Government Assistance. You also advise that this employee has been recommended to serve on the Apalachee Regional Planning Council as the representative at large for Gadsden County.

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 (1981).]

This provision prohibits a Regional Planning Council member from being employed by an agency which is subject to the regulation of the Planning Council. In our view, the "agency" of the subject employee for the purposes of the Code of Ethics is the Bureau of Local Government Assistance. The term "agency" is defined in Section 112.312(2), Florida Statutes, to mean "any department, division, bureau . . . ," and we have advised previously that under this definition a state employee's "agency" is the lowest level at which he or she functions of these three possible levels. See CEO 77-83 and CEO 82-75. However, we are not aware of any provision in law from which we could conclude that the Bureau is subject to the regulation of a Planning Council.

Section 112.313(7)(a) also prohibits a Regional Planning Council member from being employed by an agency which is doing business with the Council. This issue requires a closer examination of the relationship between the Department, the Bureau, and the Planning Council, as we previously have advised that the extension of a grant from one agency to another constitutes "doing business" for purposes of this prohibition. See CEO 77-65.

You have advised that each Regional Planning Council has entered into an annual agreement with the Department under which the Department funds various activities performed by the Councils. These contracts are administered by the Office of Substate Program Development, which is located within the Office of the Secretary, rather than by the Bureau of Local Government Assistance. Rule 9.103(1)(a), F.A.C. The Bureau administers the Block Grant Assistance Program. While the Regional Planning Councils do not receive funds under this program, their member local governments are eligible for funding under the program. You advise that currently and in the foreseeable future, no funding will be available directly to the Regional Planning Councils from the Bureau; however, the Councils are eligible for some funding under the Florida Small Cities Community Development Block Grant Program, as created by Chapter 83-205, Laws of Florida. This program is administered by the Bureau and provides for funding to eligible local governments for housing, economic development, and neighborhood and commercial revitalization. Under Section 12 of that Chapter, one percent of the available funds is to be allocated by the Department to the Regional Planning Councils to provide assistance to eligible local governments in preparing grant applications. Each region's share of these funds depends on the number of eligible local governments in the region which request funding under the program.

We are of the opinion that the Regional Planning Council is not doing business with the subject employee's agency, the Bureau of Local Government Assistance, as you have advised that no funding is available to Regional Planning Councils from the Bureau. Rather, the Planning Council is doing business with the Department, which is a separate "agency."

The last part of Section 112.313(7)(a) prohibits a public officer from having any employment which would create a continuing or frequently recurring conflict of interest or which would impede the discharge of his public duties. Under the circumstances presented, it does not appear that a Regional Planning Council member would be presented with such a substantial conflict of interest if he were employed in the Bureau of Local Government Assistance as to prohibit that employment. Instead, it would appear that his experience with the Bureau could benefit the Planning Council.

Accordingly, we find that no prohibited conflict of interest would be created were the subject employee to serve as a member of a Regional Planning Council.