CEO 84-43 -- June 7, 1984

CONFLICT OF INTEREST

CITY EMPLOYEE AND PENSION BOARD MEMBER EMPLOYED BY CITY PENSION BOARDS

To: Ms. Louise E. Henderson, Account Clerk III, City of Key West

SUMMARY:

No prohibited conflict of interest exists where a city employee also is employed as secretary and bookkeeper for the city police and firemen's pension board. Based on CEO's 76-10, 76-157, and 82-42, Section 112.313(3), Florida Statutes, would not be violated, as the employee had no involvement in the board's hiring process. However, the employee is prohibited by Section 112.313(3) from being employed part-time as the secretary and bookkeeper for the city's general employees pension board, where she has been selected to serve on that board.

QUESTION 1:

Does a prohibited conflict of interest exist where you, a City employee, also are employed as secretary and bookkeeper for the City Police and Firemen's Pension Board?

This question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advised that you are employed by the City of Key West as an Account Clerk III. You also advised that in 1980 you were hired by the City's Police and Firemen's Pension Board to work part- time as their secretary and bookkeeper. However, you advised that as a City employee you had no involvement in the Board's hiring process.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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 or 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.

[Section 112.313(3), Florida Statutes (1983).]

This provision prohibits a City employee from acting in a private capacity to sell services to any agency of the City. Nevertheless, in previous opinions such as CEO 76-10, CEO 76-157, and CEO 82-42 we have interpreted another provision of the Code of Ethics, Section 112.316, Florida Statutes, to permit a City employee to sell services to an agency of the City where the employee was not in a position to supervise or regulate the provision of those services or to give advice or recommendations regarding contracts for those services. We believe that this rationale applies equally to your part-time employment as secretary and bookkeeper for the Police and Firemen's Pension Board.

Accordingly, we find that the Code of Ethics does not prohibit you from working as secretary and bookkeeper for the Police and Firemen's Pension Board while being employed by the City as an Account Clerk III.

QUESTION 2:

Does a prohibited conflict of interest exist where you, a City employee who has been selected to serve on the City's General Employees Pension Board, also are employed part-time as the secretary and bookkeeper for that Board?

This question is answered in the affirmative.

In your letter of inquiry and in a telephone conversation with our staff, you advised that when you were hired as secretary and bookkeeper for the Police and Firemen's Pension Board you also were hired by the City's General Employees Pension Board to act as their secretary and bookkeeper. As was the case with the Police and Firemen's Pension Board, you had no involvement as a City employee in the Board's hiring process. Approximately two years later, you were elected by the employees of the City as their representative to the Pension Board.

As we noted in response to your first question, Section 112.313(3), Florida Statutes, prohibits a City employee from acting in a private capacity to provide services to any agency of the City. However, we believe that your service on the Pension Board places your employment with that Board in a completely different light than your employment with the Police and Firemen's Pension Board. Obviously, the Board reviews your work, decides whether to retain you as an employee, and sets your compensation. Under these circumstances, we find that your employment with the Board would interfere with the full and faithful discharge of your duties as a Pension Board member; for this reason, we find that Section 112.316, Florida Statutes, does not apply here.

We note that Section 112.313(3)(c) "grandfathers in" contracts which were entered into prior to appointment to public office. However, in a telephone conversation with our staff you advised that after your selection as a representative on the Pension Board the Board voted to give you a raise as their secretary and bookkeeper, a matter upon which you abstained from voting. In our view, this indicates that you have entered into a new "contract" with the Board subsequent to your appointment to the Board. Therefore, we find that your employment with the Board has not been "grandfathered in" by this provision.

While there are a number of other exemptions to the prohibition of Section 112.313(3) which are contained in Section 112.313(12), Florida Statutes, it does not appear that any of these would apply here. In particular, you have advised that you receive more than $500 per year for the work you perform for the Pension Board, so that Section 112.313(12)(f) would not apply. See CEO 77-182.

Accordingly, we find that the Code of Ethics prohibits you from being employed as secretary and bookkeeper by the General Employees Pension Board while serving as a member of that Board.