CONFLICT OF INTEREST; VOTING CONFLICT

COUNTY ADVISORY BOARD MEMBER CONTRACTING AS CONSULTANT

To: Name withheld at person's request

SUMMARY:

A prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, would be created if a County advisory board member were to contract to provide consulting services to a company that contracts with the County. However, under a waiver provision for advisory board appointees in Section 112.313(12), Florida Statutes, the appointing body could waive the existence of a conflict under Section 112.313(7)(a). The advisory board member also must comply with Sections 112.3143(3)(a) and 112.3143(4), Florida Statutes, regarding measures affecting his interest or the interests of the company. CEO 99-11 and CEO 06-2 are referenced.¹

QUESTION:

Would you, a County advisory board appointee, have a prohibited conflict of interest if you were to contract to work part-time as a consultant for a company that does business with the County?

Under the circumstances presented, your question is answered in the affirmative, absent waiver of the conflict.

In your letter and additional information provided to our staff, you state that you are an appointed member of a County Consolidated Communications Committee and that you are employed full-time as Fire Chief for a City within the County. You were chosen to serve on the Committee by the Fire Chiefs' Association of the County.² You relate that the Committee's purpose is to serve as an advisory board to the County Commission, providing feedback, suggestions, and information concerning Regional 911 and Consolidated Communications System. According to information on the County Commission's website, the Committee was created by the County Commission in 2011 and tasked with developing a plan for the cooperative consolidation of 911 and dispatch within the County.

You state that you have an opportunity to provide, as an independent contractor, part-time consulting services for a company that is described on its website (www.fitchassoc.com) as a Missouri-based firm that provides emergency medical services (EMS) and public safety consulting services to local governments nationwide. You relate that the company has entered into a consulting contract with the County Commission to provide assistance with budgetary and organizational issues related to a Regional 911 system. You further state the County Commission approved the County's contract with the company with no involvement by the Committee and that the Committee has no role or oversight as to the County's contract with the company. You anticipate that the company may present its findings concerning the Regional 911 System to the County Commission and/or the Committee for further consideration.

You state that your responsibilities in the consulting position with the company likely would involve agency analysis, strategic planning, and consolidation options and would be unrelated to the company's contract with the County. You ask whether you, as an advisory board (Committee) member, would have a conflicting employment or contractual relationship if you were to accept a part-time consulting position with the company that also has a contract with the County Commission.

Your scenario implicates Section 112.313(7)(a), Florida Statutes,³ which states:

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.

The first part of Section 112.313(7)(a) prohibits you from having an employment or contractual relationship with a business entity that is regulated by or is doing business with your agency.⁴ As an appointee to the Committee, which is a County advisory board, you are a public officer subject to the Code of Ethics, including Section 112.313(7)(a). Because the Committee operates solely in an advisory capacity to the County Commission, your public agency is determined to be the County,⁵ which is the public entity doing business with a company with which you propose to undertake a contractual relationship. Therefore, absent an exemption or a waiver, your acceptance of the proposed part-time consulting position would create a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes. We see no indication in the facts you have presented that the exemptions provided in Section 112.313(12)(a)-(j), Florida Statutes, would apply to your scenario. However, it is possible that you could obtain a waiver of your conflict of interest under Section 112.313(12), Florida Statutes, which provides in pertinent part:

The requirements of subsections (3) and (7) as they pertain to persons serving on advisory boards may be waived in a particular instance by the body which appointed the person to the advisory board, upon a full disclosure of the transaction or relationship to the appointing body prior to the waiver and an affirmative vote in favor of waiver by two-thirds of that body.

Under this provision, an appointing body can vote to waive a particular conflict of interest of an advisory board member upon full disclosure by the advisory board member of the conflicting transaction or relationship on CE Form 4A prior to the waiver and upon a two-thirds affirmative vote of the appointing body. CEO 06-2. In this case, we find that your appointing body would be the County Commission, which created the Committee as an advisory board and designated that one of the Committee members was be chosen by the Fire Chiefs' Association.

As to a potential voting conflict, if a measure were to come before the Committee that would inure to your special private gain or loss or that of your principal (the company with which you would contract were you to obtain a waiver), as an appointed public officer you would be required to adhere to the procedure in Section 112.3143(4), Florida Statutes, which requires you to disclose the nature of your conflict on a conflict memorandum (CE Form 8B) prior to participating in a meeting where such vote is to occur. Further, under Section 112.3143(3)(a), you would be required to announce your voting conflict, abstain from voting on the measure, and file the CE Form 8B.

Accordingly, we find that your contracting to provide consulting services to a company that contracts with the County, while you are serving as a member of the Committee, would be prohibited by Section 112.313(7)(a), Florida Statutes, but that such conflict could be waived by a two-thirds affirmative vote of the County Commission (appointing body) under Section 112.313(12), Florida Statutes. If a measure that would inure to your special private gain or loss or that of the company were to come before the Committee, you would be required to comply with Sections 112.3143(3)(a) and 112.3143(4), Florida Statutes, by following instructions for appointed officers on CE Form 8B.

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 15, 2016, and RENDERED this 20th day of April, 2016.

____________________________________

Stanley M. Weston, Chair

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

^[2]According to information available on the website of the County Commission, the County resolution creating the Committee requires that the Committee membership include "1 representative from the Fire Chief's Association."

^[3]We find that Section 112.313(3), Florida Statutes, is not implicated in your scenario. However, if this provision were implicated, waiver by the appointing body could be available as discussed herein regarding the board member's conflict under Section 112.313(7)(a).

^[4]"Agency" is defined in Section 112.312(2), Florida Statutes, as "any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative." See also CEO 99-11.

^[5]Because you have not indicated the existence of a relationship between the company and the City, the City is not implicated as an agency of yours for purposes of this inquiry.