A county commissioner would not be prohibited from being employed as the executive director of a nonprofit, tax exempt organization that has entered into several contracts with the county prior to his qualifying to run for election to the commission, as the existing contracts would be considered to be "grandfathered-in." However, a prohibited conflict of interest would be created if the organization enters into new contracts with the county, unless one of the exemptions specifically provided in the Code of Ethics is applicable. Under the circumstances, the exemption regarding 501(c) organizations codified at Section 112.313(15), Florida Statutes, would apply, as the executive director's method of compensation by the organization would be altered so that he is not directly or indirectly compensated as a result of the county contract(s). CEO 89-48, CEO 01-4, and CEO 02-14 are referenced .
QUESTION:
Would a prohibited conflict of interest exist were the executive director of a nonprofit, tax exempt organization that has several contracts with a county to be elected to serve as a county commissioner while remaining an employee of the organization?
Your question is answered in the negative, under the circumstances presented.
You advise that Mr. Angelo Castillo currently is employed as the executive director of a nonprofit organization that is tax exempt under Section 501(c)(3) of the Internal Revenue Code, and that he is a candidate for nomination and election to the Broward County Board of County Commissioners. You further advise that the organization has several contracts with the County.
Two of these contracts are for services under the Ryan White Program, a grant program under which HIV-related services are provided to those who do not have sufficient health care coverage or financial resources for coping with HIV disease. Under this program, the County issues a competitive request for proposal (RFP) in three-year cycles, and the County Commission awards three-year contracts. For each entity that is selected, County staff prepares a yearly contract that depends on the actual funding received from the federal government for that year; County staff then evaluates the organization's performance at the end of each year and decides whether or not to renew the contract for the next year of the cycle. The first of the two current contracts between the organization and the County, a general populations contract for $1,069,646, is in its third year of the three-year award. The other contract is a minority AIDS initiative contract, for $441,581, and is in its second year of the three-year award.
In addition, the County provides funding to the organization to provide infirmary services to homeless individuals at the organization's assisted living facility. This contract also is awarded competitively by the County on three-year cycles, is for $411,350, and is in its first year.
You also advise that, from time to time, the County offers Community Development Block Grant (CDBG) funds through an RFP process for capital renovation or acquisition of eligible properties. There currently is no contract in place, but the organization has applied for a $153,479 grant under this program and expects that the grant will be awarded before the qualifying period for election to the County Commission.
Finally, you advise that the organization has contracted with a housing group to bring low income tenants to rent units within an affordable housing development that the housing group has contracted with the County to develop on land owned by the County. The organization will receive a small percentage of fees and rents. It is expected that matters related to this development will come before the County Commission in the future.
Section 112.313(7)(a) 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, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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.
This provision of the Code of Ethics prohibits a county commissioner from being employed by a business entity which is doing business with the county, his agency. CEO 01-15.
However, as with our previous decisions in CEO 82-10, CEO 96-31, CEO 02-14, CEO 02-19, and CEO 08-4, we find an exception to this prohibition when the public official's private employment and the business relationship between the agency and his employer predate the officer's qualifying for election to office. Thus, we find that none of the contracts described above between the organization and the County would create a prohibited conflict of interest were the executive director to be elected to the County Commission, as each would be "grandfathered-in" under our precedent. Our precedent also allows existing contracts to be renewed or extended after one takes office, when contemplated by the existing contract, so long as the terms of the contract remain the same. CEO 02-14, CEO 08-8. Therefore, since the existing contracts contemplate renewal for the other years of their three-year cycles, the Code of Ethics would not prohibit his employment with the organization if these existing contracts are renewed according to their terms.
Regardless, any new contract between the nonprofit organization and the County, entered into after his election, would be prohibited by Section 112.313(7)(a), unless an exemption is applicable. Section 112.313(12) provides several express exemptions to this prohibition, including one where the business is transacted under a system of sealed, competitive bids. (Section 112.313(12)(b), Florida Statutes.) Because these contracts were awarded under the RFP process and not through a sealed bid process, however, we find that this exemption is not applicable. See CEO 89-48 (RFP not the equivalent of sealed bid process), and CEO 01-15 (Consultants' Competitive Negotiation Act contracts under Section 287.055, Florida Statutes, do not fall under this exception).
There is another exemption which may apply to this situation, as to contracts that would not be "grandfathered-in" as described above:
ADDITIONAL EXEMPTION.—No elected public officer shall be held in violation of subsection (7) if the officer maintains an employment relationship with an entity which is currently a tax-exempt organization under s. 501(c) of the Internal Revenue Code and which contracts with or otherwise enters into a business relationship with the officer’s agency and:
(a) The officer’s employment is not directly or indirectly compensated as a result of such contract or business relationship;
(b) The officer has in no way participated in the agency’s decision to contract or to enter into the business relationship with his or her employer, whether by participating in discussion at the meeting, by communicating with officers or employees of the agency, or otherwise; and
(c) The officer abstains from voting on any matter which may come before the agency involving the officer’s employer, publicly states to the assembly the nature of the officer’s interest in the matter from which he or she is abstaining, and files a written memorandum as provided in s. 112.3143. [Section 112.313(15), Florida Statutes.]
In CEO 01-4 we examined this particular exemption, and stated:
We have had few occasions to construe the exemption and even fewer occasions to construe the meaning of paragraph (a), the portion of the exemption which is most important to your inquiry. In CEO 89-29, we concluded that the exemption applied to a city commissioner's employment as an executive director of a chamber of commerce contracting with the city, where (as is not the case in your situation) the commissioner's compensation (a base salary and annual bonus) was paid from membership dues and other revenues of the chamber which did not include any public funds. In CEO 96-10, we concluded that the exemption applied to a school board member's employment with an area council on aging, where (as also is not the case in your situation) the program of the council for which the member was employed as coordinator did not involve school board funds. In view of our decisions in these two opinions and in view of the reality that your salary is part of the administrative expenses of the organization which are funded substantially via City contract monies, we find that your employment would be directly or indirectly compensated as a result of the contracts/business relationship between the City and the organization, and thus that the exemption would not apply. In arriving at this conclusion, we are not unmindful of your and the organization's positive contributions to the community; however, we are legally bound to narrowly construe exemptions to prohibitions, lest the exemption swallow the rule or prohibition. See State v. Nourse, 340 So. 2d 966 (Fla. 3d DCA 1976).
You have proposed that, through internal accounting procedures, funds received by the organization from contracts with agencies will be segregated, with funds received from Broward County being segregated from those received from other entities. The executive director's salary and benefits package will be paid for out of the funds received from entities other than Broward County. The segregated payments will be supported by policy, accounting and payroll procedures, and an independent audit letter every year from the CPA firm saying that none of the executive director's compensation came from any funds directly or indirectly received from Broward County.
In our view, this exemption would be applicable to future new contracts between the organization and the County if the manner of his compensation is reformulated in the way you propose. Although we realize that this may simply look like the organization is shifting the source of the executive director's compensation in order to take advantage of the exemption, when the law is examined closely, that is exactly what is contemplated. In other words, by making it clear that the public official is not compensated directly or indirectly from contracts with his or her agency, the law requires that the nonprofit organization be large enough so that the potential for conflict is reduced, because the official's salary cannot be dependent upon funding from his or her agency (which would increase the temptation for the official to improperly intervene in the contractual relationship). Therefore, we find that the executive director's employment would not be directly or indirectly compensated as a result of the Broward County contracts and that this exemption would allow him to retain his employment while serving on the County Commission, so long as he in no way participates in the County's decision to contract with his employer and he abstains from voting on any matter involving the organization, following the requirements of the voting conflicts law provided in Section 112.3143(3), Florida Statutes1.
Accordingly, we find that the subject individual would not be prohibited from being employed as the executive director of the nonprofit, tax exempt organization and serving as a member of the County Commission, as existing contracts would be considered to be "grandfathered-in." In addition, we find that a prohibited conflict of interest would not be created if the organization enters into new contracts with the County so long as the executive director's method of compensation by the organization is altered in the manner you propose and he otherwise complies with the requirements of Section 112.313(15), Florida Statutes.
ORDERED by the State of Florida Commission on Ethics meeting in public session on June 4, 2010 and RENDERED this 9th day of June, 2010.
__________________________
Roy Rogers
Chairman
[1]The contractual relationship between the housing group and the nonprofit organization would not give rise to a prohibited conflict of interest under Section 112.313(7)(a), as the organization is not doing business with the County under that contract. Nevertheless, County Commission votes affecting the organization may result in "special private gain or loss" to the executive director's employer (a "principal by whom he is retained") and that would give rise to a voting conflict of interest under Section 112.3143(3).