CONFLICT OF INTEREST; VOTING CONFLICT

COUNTY COMMISSIONER EMPLOYEE OF FOOD BANK
RECEIVING GRANT FUNDING FROM COUNTY

To: Ronald G. Meyer, Esquire (Tallahassee)

SUMMARY:

Under the circumstances presented, a prohibited conflict of interest would not be created were a county commissioner to remain employed by a nonprofit food bank receiving grant funding from the county. However, the commissioner must comply with the voting conflicts law. CEOs 89-29, 07-11, and 15-1 are referenced.¹

QUESTION 1:

Would a prohibited conflict of interest be created were a candidate for county commission who also is employed by a food bank which receives grant funding from the county to maintain his employment if elected to the county commission?

Under the circumstances presented, Question 1 is answered in the negative.

In your letter of inquiry and additional information provided in response to correspondence from our staff, you relate that you make inquiry in behalf of a candidate (not an incumbent) for a county commission seat who also is employed² by a nonprofit food bank [organized as a nonprofit corporation and tax-exempt under s. 501(c) of the Internal Revenue Code] based in the county. For several years, the food bank, along with dozens of other entities, has received grant funds under a community human services partnership/collaboration (CHSP).³ The funding requests are annual, and the process includes teams of citizen volunteers which review funding applications and make recommendations to the county commission, which then votes to approve or revise the teams' funding recommendations as reviewed by or modified by the county's human services grant review committee. Each year, the county commission votes on the initial county allocation of CHSP program funding, where no funding amounts are specified for the food bank or any of the other entities; the funding recommendations, which lists the funding amounts to the food bank and other entities; and the county's budget resolution, which provides a high-level appropriation summary but does not list any CHSP allocations to the food bank or other entities. The county does not purchase, rent, or lease any realty, goods, or services from the food bank, and the food bank does not rent, lease, or sell any realty, goods, or services to the county; rather, the food bank receives grant funds from the county which assists the food bank with its distribution of food to persons who the county is under no legal obligation to provide with food. You relate that the candidate's employment with the food bank is not directly compensated as a result of the food bank's grant relationship with the county; that he would continue to be employed by the food bank at his current salary ($88,000, fiscal year 2017-2018, about four percent of the food bank's annual operating budget) even if, for reasons beyond his control,⁴ the county were to discontinue all of its funding to the food bank; and the grant amount for fiscal year 2017-2018 is equivalent to about one and one-half percent of the food bank's total operating budget of $2.1 million.

Relevant prohibitions are contained in Sections 112.313(3) and 112.313(7)(a), Florida Statutes, which provide:

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.

[Section 112.313(3), Florida Statutes.]

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.]

Section 112.313(3) does not apply because the food bank is not selling goods or services to the county. See CEO 07-11.

Absent an exemption, the first part of Section 112.313(7)(a) would prohibit the holding of the commission seat and simultaneous holding of employment with the food bank, inasmuch as the food bank would be a business entity [defined in Section 112.312(5), Florida Statutes, to include corporations] doing business with (by virtue of a grant agreement between the county and the food bank) the county commission (the candidate's public agency should he be elected and take office). However, Section 112.313(15), Florida Statutes, provides:

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.

We find the exemption of Section 112.313(15) to be applicable in the situation presented, provided that the candidate, should he be successful in election and become a county commissioner, refrains from participating regarding grant funding to the food bank [see paragraph (b) of the exemption] and abstains from voting on any matter involving the food bank [see paragraph (c) of the exemption].⁵

Accordingly, under the circumstances presented, as to Question 1, we find that a prohibited conflict of interest would not be created were the candidate to become a county commissioner and retain his employment with the food bank.⁶

QUESTION 2:

As a county commissioner, would the candidate be able to participate, in his capacity as a food bank employee, in the preparation of the food bank's written grant application or in the presentation to the CHSP citizens review teams?

Under the circumstances presented, Question 2 is answered in the negative.

Lack of such participation is necessary for applicability of the exemption of Section 112.313(15); see paragraph (b) of the exemption. Further, such participation would encompass activities related to lobbying the county commission, which would run afoul of the prohibition under the second part of Section 112.313(7)(a); see CEO 15-1 and CEO 89-29.

QUESTION 3:

As a commissioner, would he be able to participate in county commission budget workshops or would he be required to refrain from any discussion related to the CHSP categories that include funding for the food bank?

Under the circumstances presented, Question 3 is answered as set forth below.

We find that in order to come within the exemption of Section 112.313(15), that he will have to refrain from any discussion related to the CHSP categories that include funding for the food bank. See paragraph (b) of the exemption. We do not find that his refraining from participating in budget workshop matters unrelated to the food bank is necessary for him to come within the exemption.

QUESTION 4:

If he takes office, would he be required to declare a conflict and comply with Section 112.3143(3)(a), Florida Statutes, on measures to fund the categories of the CHSP grant allocations which could include funding for the food bank?

Under the circumstances presented, Question 4 is answered in the affirmative.

We find that declaration of conflict, abstention from voting, and the filing of CE Form 8B (memorandum of voting conflict) are necessary as to such measures, in order to apply the exemption of Section 112.313(15) [see paragraph (c) of the exemption], and in order to comply with Section 112.3143(3)(a), itself (see CEO 15-1).

QUESTION 5:

How would his voting on categories of CHSP grant allocations that do not include funding for the food bank impact applicability of the exemption of Section 112.313(15)?

Under the circumstances presented, Question 5 is answered as set forth below.

We find that voting on such measures would not negate applicability of the exemption. The measures would not involve his employer. See paragraph (c) of the exemption.

QUESTION 6:

As a commissioner, will he be presented with a voting conflict regarding appointment of the county's human services grant review committee, or regarding his designation of one person to serve on the committee?

Additionally, you write that each county commissioner is permitted to name one person to the county's human services grant review committee, approved as a whole by the county commission, and that the committee reviews the citizen review teams' suggested CHSP funding allocations and provides final CHSP funding recommendations to the county commission.

Under the circumstances presented, we find that his role in naming a member or in the commission's approval of the whole of the committee would not present a voting conflict under Section 112.3143(3)(a) or a prohibited conflict under Section 112.313(7)(a). There is no indication that any vote approving the committee membership would inure to the special private gain or loss of the commissioner or to that of any person or entity standing in a relationship to him as listed in Section 112.3143(3)(a). As to Section 112.313(7)(a), the situation presented does not indicate the existence of any employment or contractual relationship beyond the employment exempted by operation of Section 112.313(15); see Question 1, above.

Your questions are answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 20, 2018, and RENDERED this 25th day of April, 2018.

____________________________________

Michelle Anchors, Chair

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

^[2]The candidate is an employee of the food bank, not an independent contractor for it; and he is not a corporate director or officer of the food bank, his title of chief executive officer merely being his job title as an employee.

^[3]Grant funding is not no-strings-attached money. It is provided under a grant agreement containing mutual terms or obligations.

^[4] The food bank's board of directors, which evaluates the candidate's job performance and determines his salary each year, could possibly adjust his compensation, or decline to continue his employment, if he or his food bank staff were somehow responsible for a significant decrease in the amount of grant funding provided by the county (e.g., a significant decrease in county funding for their failure to submit a grant application or for their submission of a substandard application). Further, if all or a significant portion of the food bank's county funding were lost, the food bank would attempt to replace it with revenue from other sources (e.g., corporate grants, individuals' donations, special funding events). If the food bank were unable to find funds to replace the loss, it would need to slightly reduce the amount of food distribution, or reduce other expenses, which might include staff salaries.

^[5]Under the detail provided in your inquiry and set forth above, we do not find that the candidate's employment will be directly or indirectly compensated as a result of the relationship, under the circumstances presented in this inquiry, between the county and the food bank. See paragraph (a) of the exemption.

^[6]While the exemption of Section 112.313(15) can negate a conflict under the first part of Section 112.313(7)(a), it cannot negate a conflict, if one is present, under the second part of Section 112.313(7)(a); see CEO 15-1. However, we find that a prohibited conflict would not exist under the second part of Section 112.313(7)(a). This lack of conflict is due to the structured approach to grant funding which involves recommendations by citizen teams, the existence of multiple grant recipient organizations other than the food bank, and the limited involvement of the county commission.