CONFLICT OF INTEREST
CITY COMMISSIONER EMPLOYED BY SHERIFF'S OFFICE
CONTRACTING LAW ENFORCEMENT SERVICES TO CITY
To: Name withheld at person's request (City of Pahokee)
SUMMARY:
A prohibited conflict of interest does not exist under Section 112.313(7)(a), Florida Statutes, where a member of a city commission is employed by a sheriff's office providing law enforcement services to the city under an agreement entered into and amended before the member took office. Under the circumstances presented and subject to the condition that the member's employment is not connected to her employer's provision of services to the city, a prohibited conflict would not be created were the city and the sheriff's office to contract anew. The existing agreement is grandfathered, intergovernmental agreements rarely constitute "doing business," and no frequently recurring conflict or impediment to the full and faithful discharge of the member's public duties is indicated. CEO 76-2, CEO 77-36, CEO 79-13, CEO 80-87, CEO 81-5, CEO 82-50, CEO 86-24, CEO 90-51, CEO 95-23, CEO 02-14, CEO 04-9, CEO 06-2, and CEO 07-11 are referenced and CEO 77-65 is distinguished.1
QUESTION:
Does a prohibited conflict of interest exist where a member of a city commission is employed by a sheriff's office that provides law enforcement services to the city under a contract entered into before she became a city commissioner, or under a new contract entered into while she is a member of the city commission?
Under the situation presented and subject to the condition that the member's employment is not connected to her employer's provision of services to the city, the question is answered in the negative.
By your letter of inquiry, an earlier letter from the then City Attorney, and additional information provided to our staff, we are advised that ... (member) serves as a member of the City Commission of the City of Pahokee, having recently been appointed by the City Commission to fill a vacant seat on the City Commission, and that her term ends in March 2008, at which time she will have to run for election to keep the seat. In addition, we are advised that the member is employed by the Palm Beach County Sheriff's Office (PBSO), working with schools in the City and in neighboring cities as a case manager whose responsibilities include providing services to families of truant or runaway juveniles. We are advised that the member has held this position with PBSO since August 2006, prior to that time working with PBSO in a corrections support position.
Continuing, you advise that in February 2006 the City dissolved its police department and contracted with PBSO to provide law enforcement services in the City, paying for the services solely from the City's general revenue funds.2 You advise that the agreement for law enforcement services between the City and PBSO was entered into on February 12, 2006; that it automatically terminates on September 30, 2008, unless renewed; that notice of intent to renew must be given by the City to PBSO no later than May 31, 2008; and, therefore, that the decision to have PBSO continue to provide law enforcement services to the City must be voted on by the City Commission prior to May 31.
The standard of conduct applicable to the member (as a "public officer" due to her membership on the City Commission) and at issue in this inquiry is Section 112.313(7)(a), Florida Statutes,3 which provides:
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.
In making a determination as to whether a new agreement (one entered into after the member's taking of office)4 would create a prohibited conflict for her under Section 112.313(7)(a), we must first determine whether such an agreement would constitute "doing business"5 within the meaning of the law. Generally, we have found that a business entity is "doing business with" a public agency where the parties have entered into a lease, contract, or other type of legal arrangement under which one party would have a cause of action against the other in the event of a default or breach. See, for example, CEO 07-11, CEO 86-24, CEO 82-50, CEO 80-87, and CEO 77-36. However, we also have found that agreements between governmental entities for the provision of governmental services generally do not constitute "doing business," reasoning that a purpose of the Code of Ethics is to prevent private gain at public expense, not to prevent dealings between governmental entities for the delivery of services to the public. See, for example, CEO 06-2, CEO 04-9 (Question 3), CEO 81-5, and CEO 76-2.
Particular opinions of ours highly relevant to our determination of whether the City and PBSO are "doing business" with each other are CEO 77-65 (Florida Bicentennial Commission member employed as professor at University of Florida where University projects are funded by Commission), CEO 79-13 (sheriff's office contracting with a port authority to provide security at the port), CEO 90-51 (school board member serving as employee of city police department where police department provides educational programs to county schools at no charge), and CEO 95-23 (county juvenile services board member employee of state university contracting with board). In CEO 77-65, we found that the State Bicentennial Commission and the State university would be "doing business" in a situation where the Commission's grants or funding to the university allowed the member/professor to prepare for publication of a manuscript and to participate in a particular university project. In contrast, in the instant situation of the City Commission member, there is no indication that the City's funding of law enforcement services within the City, via its contracting with PBSO, funds the member's position with PBSO, her employment with PBSO apparently being unrelated to the law enforcement (essentially, "road patrol") services which are the subject of the agreement between the City and PBSO. In CEO 79-13, we concluded that provision of assistance by a sheriff's office to a port security department did not constitute "doing business," despite the fact that the sheriff's office was reimbursed (paid) by the port for its costs in providing the assistance or requested services. Our finding in CEO 90-51, that a school district and a city police department were not "doing business," was based on the arrangement constituting an intergovernmental relationship for the delivery of services and our view that "doing business" also required some exchange of consideration from the public officer's agency to her employing agency, which was not present because the city, and not the school board of which she was a member, funded the program she worked in as a city police officer. Likewise, in the instant inquiry, the City's contract with PBSO is not related to the member's PBSO employment. In CEO 95-23, we determined that a county juvenile welfare services board and a State university were not "doing business" where the university contracted with the board to train and assist providers of services to children and their families, because the relationship between the two public agencies facilitated the delivery of governmental services and because the board member/university employee would derive no private gain from the contract. Similarly, here the member's PBSO employment is not connected to the Sheriff's law enforcement delivered to the City.
In view of our prior decisions, in the instant inquiry, we find that a renewed/extended contract or even a new law enforcement services agreement between the City and PBSO would not constitute "doing business" between the two public agencies,6 provided the member's employment with PBSO is not in conjunction with PBSO's provision of law enforcement services to the City under the agreement. Thus, we find that a prohibited conflict of interest would not be created for the member under Section 112.313(7)(a)7 were the City and PBSO to contract anew for law enforcement services. We believe our determination herein to be in harmony with our general view that intergovernmental agreements for the delivery of services do not amount to "doing business" because it is a purpose of the Code of Ethics to prevent private gain at public expense, not to interfere with cooperation between governmental agencies to foster the delivery of public services. Also, we find that lack of a connection between the member's PBSO job and PBSO's agreement with the City distinguishes her situation from that of CEO 77-65 in which funding of a public officer's employment with another agency was through the relationship between the two public agencies.8
Accordingly, we find that a prohibited conflict of interest does not exist for the member based upon an agreement between the City and PBSO for law enforcement services entered into and amended before she took office, and, under the facts presented and subject to the condition that her PBSO employment not be connected to her employer's provision of services to the City, we find that a prohibited conflict would not be created for the member were the City to contract anew with PBSO for law enforcement services.
ORDERED by the State of Florida Commission on Ethics meeting in public session on February 29, 2008 and RENDERED this 5th day of March, 2008.
____________________________________
Albert P. Massey, III, Chairman
[2]We are advised that under the agreement between the City and PBSO, the Sheriff maintains "the responsibility for and control of the delivery of services, the standards of performance, the discipline of personnel, and other matters incident to the performance of the services, duties, and responsibilities as described and contemplated [in the agreement]," and "the Sheriff will notify and review with the City Manager the removal, transfer, or replacement of any personnel currently assigned to the CITY."
[3]The member's situation does not implicate Section 112.313(10)(a), Florida Statutes, because she is not employed by the City on whose governing board she sits. Also, whether the member's situation implicates the "dual office-holding" prohibition of Article II, Section 5(a), Florida Constitution, is not an issue within the jurisdiction of the Commission on Ethics. The member may want to contact the Office of the Attorney General regarding Article II, Section 5(a). These provisions provide:
EMPLOYEES HOLDING OFFICE.-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. [Section 112.313(10)(a), Florida Statutes.]
PUBLIC OFFICERS.--. . . No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein . . . . [Article II, Section 5(a), Florida Constitution.]
[4]The existing agreement and its two amendments, entered into before the member took office as a City Commissioner, likely would be "grandfathered." See CEO 02-14. However, even without grandfathering, we find that no prohibited conflict would exist because of our reasoning set forth below regarding intergovernmental agreements.
[5]We see no indication in your inquiry that PBSO is "subject to the regulation of" the City.
[6]Because we have found that the two agencies herein are not "doing business," and thus that the situation does not present a prohibited conflict, it is not necessary for us to consider whether an exemption under Section 112.313(12), Florida Statutes, such as the "sole source of supply" exemption, would apply.
[7]Section 112.313(3), Florida Statutes, is not implicated by the instant inquiry because PBSO is an "agency," not a "business entity," and because the member is not acting in any capacity, much less in a private capacity, to sell law enforcement services to the City. See CEO 95-23. Section 112.313(3) provides:
DOING BUSINESS WITH ONE'S AGENCY.-No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's 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 the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she 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 or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to:
(a) October 1, 1975.
(b) Qualification for elective office.
(c) Appointment to public office.
(d) Beginning public employment.
[8] Also, we find that a prohibited conflict of interest would not be created under the second part of Section 112.313(7)(a), under the circumstances presented and subject to the condition noted.