CEO 92-40 -- September 3, 1992

CONFLICT OF INTEREST

COUNTY STADIUM MANAGER SUBMITTING PROPOSAL TO

COUNTY FOR FUNDING TO PURCHASE TELEVISION

AIR TIME FOR VIDEO PROMOTING VARIOUS

COUNTY TOURISM RELATED BUSINESSES

To: Don Meirs, Stadium Manager, Osceola County Stadium and Sports Complex (Kissimmee)

SUMMARY:

In light of Section 112.316, Florida Statutes, which requires that the Code of Ethics not be interpreted to preclude private pursuits which do not interfere with the full and faithful discharge of a public employee's public duties, violations of Sections 112.313(3) and 112.313(7)(a), Florida Statutes, would not be created were a county employed stadium manager to obtain funding from the county commission to purchase television air time as the result of his submitting a proposal to make a video promoting various county tourism related businesses. Section 112.313(3), Florida Statutes, would prohibit the stadium manager from selling goods or services in his private capacity to the county, and Section 112.313(7)(a) would prohibit him from holding an employment or contractual relationship with a business entity doing business with the county. However, because obtaining funding from the county commission for the video would not interfere with the full and faithful discharge of his public duties, the stadium manager's business venture would not appear to present such a substantial conflict of interest that it should be prohibited.

QUESTION:

Would a prohibited conflict of interest be created were a county employed stadium manager to obtain funding from the County as the result of his submission to the county of a proposal to promote various of the county's tourism related businesses through the making and television airing of a video featuring such businesses?

Your question is answered in the negative.

In your letter of inquiry, you advise that you are employed full-time by Osceola County to manage the County's baseball stadium. You advise that your job as stadium manager, requires you to hold as many events as possible at the stadium which (1) will be of recreational and entertainment value to the citizens of the County; (2) will add to the economy of the community; and (3) will provide a place where the County's youth can participate in positive, wholesome activities. You also advise that your entire stadium operation, including your salary, is funded through Tourist Development Tax proceeds.

You also advise that the County's Tourist Development Council is the advisory body that makes recommendations to the County Commission on expenditures of tourist development tax monies. The County Tourist Development Council was established and functions pursuant to Section 125.0104(4)(e), Florida Statutes, you advise.

You advise that you would like to submit a business proposal to Osceola County; however, you are concerned that the proposal might constitute a violation of either Section 112.313(3) or Section 112.313(7)(a), Florida Statutes. You propose to produce a video featuring various County tourism related businesses, such as attractions, hotels, restaurants, and campgrounds. You propose that the video be a 30 minute program consisting of 13 different episodes and be shown as an advertisement or commercial. Each episode would be filmed at the various tourism related businesses, you advise.

You advise that you and your partner, who is not a County employee, would solicit those businesses highlighted in the video to be sponsors. The sponsorship funds less the show's costs would be your profit, you advise. You also propose asking the County's Tourist Development Council to recommend to the County Commission that it expend some of the Tourist Development Tax monies to buy air time on television stations. Finally, you advise that no part of your stadium budget would be spent on your proposed business venture, and any time that you devote to the project would be your own time.

Sections 112.313(3) and 112.313(7)(a), Florida Statutes, respectively provide as follows:

DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee of his 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 his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he 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. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

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.

The first part of Section 112.313(3), Florida Statutes, which prohibits you, a public employee, from purchasing goods or services for the County from a business entity in which you have a material interest or hold a governing position is not applicable to your situation because you would not be purchasing the services of your business venture for the County. The second part, which prohibits you from selling goods or services in your private capacity to the County, also is inapplicable because you would not be selling either the video or your services to your agency or political subdivision. You would be purchasing television air time with the assistance of a grant from the County Commission. See CEO 82-22 and CEO 89-29.

The first part of Section 112.313(7)(a) also prohibits you from holding an employment or contractual relationship with a business entity which is either doing business with or is regulated by the County. We previously have construed the term "doing business" to include the application for and receipt of a grant. See CEO 77-65 and CEO 90-76. Therefore, if we assume that your overture to the Tourist Development Council for a recommendation to the County Commission for advertising funds for your video is in actuality an application for a grant from the County Commission, then the first part of Section 112.313(7)(a) would prohibit the County's expenditure for this purpose because you would be employed by a business entity "doing business" with your agency--the County Commission.

In addition, the second part of Section 112.313(7)(a), Florida Statutes, prohibits you from holding an employment or contractual relationship that 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. However, we do not find that the second part would be applicable to your situation because it is not readily apparent to us that your making the video and seeking funds from the County Commission for advertising purposes 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 note that the following provision of the Code of Ethics requires that the Code not be interpreted to preclude private pursuits which do not interfere with the full and faithful discharge of a public employee's public duties:

It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency, or county, city or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county city, or other political subdivision of the state involved. [Section 112.316, Florida Statutes.]

In our view, your seeking funding from the County Commission for your video would not interfere with the full and faithful discharge of your public duties and would not present such a substantial conflict of interest that it should be prohibited. Under the circumstances you have presented, we find that your duties do not involve either the giving of advice or recommendations directly to the County Commission on the expenditure of Tourist Development Tax monies, and you would be making the video and soliciting businesses as sponsors on your own time and without using any of the public funds budgeted for the operation of the County's stadium and sports complex. Additionally, rather than creating a conflict of interest, your proposal to promote the County and its tourist related businesses through the television airing of your video, in light of your duties as stadium manager, appears to involve a unity of interests rather than a conflict of interests.

Accordingly, in light of Section 112.316, Florida Statutes, which requires that the Code of Ethics not be interpreted to preclude private pursuits which do not interfere with the full and faithful discharge of your public duties, we find that no violation of Sections 112.313(3) and 112.313(7)(a), Florida Statutes, would be created were you to obtain funding from the County Commission to purchase television air time as the result of submitting a proposal to the County Commission to make a video promoting various County tourism related businesses. Because your proposal, if accepted, taken together with your public duties, appears to involve a unity of interests, we perceive no conflict of interest sufficient to prohibit your proposed business venture.