CEO 00-23 -- November 21, 2000

 

CONFLICT OF INTEREST

 

FIRE DISTRICT COMMISSIONER SERVING

AS DISTRICT FIREFIGHTER

 

To:       Mr. Richard Wride, Commissioner, North Bay Fire District (Niceville)

 

SUMMARY:

 

A commissioner of a fire district who serves for compensation (however small in amount) as a “volunteer” firefighter of the district’s fire department does so in violation of Sections 112.313(10) and 112.313(7)(a), Florida Statutes, which prohibit, respectively, an employee of a political subdivision holding office as a member of its governing board, and the member holding employment with an agency which is subject to the regulation of his agency.  However, were the district to eliminate the $2 per run payment or substitute a true reimbursement procedure, or if the member were to refuse in writing in advance the payments, the resulting situation would not be conflicting under either of the statutes, inasmuch as the element of “employment” would fail for want of “compensation,” notwithstanding the provision of workers’ compensation coverage, life insurance, uniforms and bunker gear (firefighting equipment) to the firefighters (including the member).  CEO's 93-23, 89-56, 80-29, 78-28, 76-187, and 76-109 are referenced.

 

QUESTION:

 

Is a situation in which a member of the governing commission of a fire district also is a firefighter of the district’s fire department violative of Sections 112.313(10) and 112.313(7)(a), Florida Statutes?

 

Your question is answered as set forth below.

 

By your letter of inquiry and a copy of a letter from our staff to you, we are advised that you serve as a Commissioner of the North Bay Fire District[1] and that you serve as a firefighter in the District’s fire department.  District firefighters, you advise, are provided with workers’ compensation coverage, life insurance, and firefighting equipment (e.g., uniforms and bunker gear), and are paid the sum of $2 per fire call or run.  Against this factual backdrop, you question whether there is a conflict, and question further that if there is a conflict whether your refusal to accept the per-run money payments will negate the conflict.

 

The statutes provide:

 

EMPLOYEES HOLDING OFFICE.--

(a)  No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his or her employer while, at the same time, continuing as an employee of such employer.

(b)  The provisions of this subsection shall not apply to any person holding office in violation of such provisions on the effective date of this act.  However, such a person shall surrender his or her conflicting employment prior to seeking reelection or accepting reappointment to office. [Section 112.313(10), Florida Statutes.]

 

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. [Section 112.313(7)(a), Florida Statutes.]

 

Under our precedent, we find that the existing situation is conflicting under both statutes.  See CEO 89-56, CEO 80-29, CEO 78-28, CEO 76-187, and CEO 76-109 (especially CEO 78-28, where the money compensation was $5 per fire call), reasoning that employment’s necessary element of compensation was present. 

However, if the monetary payments to firefighters are eliminated or if a true reimbursement-for-actual-expenses policy is substituted for the $2 per run payment, we find that the element of employment would fail due to there being no compensation,[2] and thus that the resulting situation will not be conflicting.[3]  Also, if a per-run payment remains in place, if you refuse in writing in advance to accept it and in fact do not accept it, we find that the resulting situation will not be conflicting.

Accordingly, we find that your situation containing the payment of the $2 per run fee is violative of the statutes, that elimination of the fee or conversion to a true reimbursement procedure will negate the conflict, and that your personal refusal in writing coupled with your lack of acceptance of the per run fee also will negate the conflict.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on November 17, 2000 and RENDERED this 21st day of November, 2000.

 

 

__________________________

Howard Marks

Chair

 


[1]  Located in Okaloosa County in or near Niceville.

[2]  Under our precedent, the workers’ compensation coverage, life insurance, firefighting equipment, and any true reimbursement provided to District firefighters would not constitute compensation.  See CEO 89-56 and CEO 93-23.

[3]  Also, we find that any District Commission measures to eliminate the $2 payment would inure to your special private gain or loss (your being one of a small number of affected firefighters), necessitating you abstention from voting and further compliance with the voting conflicts law [Section 112.3143(3)(a), Florida Statutes]; see CE Form 8B.