CONFLICT OF INTEREST; VOTING CONFLICT; MISUSE OF POSITION

COUNTY ADVISORY BOARD MEMBER CONTRACTING WITH AND OBTAINING PERMITS FROM COUNTY

To: Name withheld at person’s request (Sarasota)

SUMMARY:

A prohibited conflict of interest will be created under Sections 112.313(3) and 112.313(7)(a), Florida Statutes, if a company owned by a member of an advisory board to a county commission contracts with the county to provide summer programs. The conflict could be negated were the company to secure the contracts through sealed, competitive bidding; if the company is the sole provider within the county for the services involved; or if a waiver is obtained pursuant to Section 112.313(12), Florida Statutes. A prohibited conflict of interest will also be created under Section 112.313(7)(a) should the board member’s company obtain permits issued by the county’s parks and recreation department, as the member’s board has the ability to influence the guidelines governing the permit program. This conflict, too, can be negated by a properly obtained waiver under Section 112.313(12). The board member is not prohibited from discussing matters concerning the permit program with other members of city and county government, so long as such discussions do not violate the Sunshine Law, and may identify herself and her public positions when commenting on such issues in a newspaper, provided she clarifies that her opinions do not necessarily reflect the positions of the public bodies on which she serves. She will also have a voting conflict regarding measures concerning the permit program guidelines. Referenced are CEO 15-2, CEO 13-16, CEO 06-24, CEO 05-10, CEO 99-11, CEO 94-36, and CEO 90-15.

QUESTION 1:

Would you, a member of an advisory board to a County Commission, have a prohibited conflict of interest if your company contracts with the County?

Under the circumstances presented, your question is answered as set forth below.

Through your letter of inquiry and additional correspondence with our staff, you state you are a member (serving in an appointive position) of a City Parks and Recreation Environmental Protection Board (PREP Board).¹ You relate that the PREP Board has selected you to serve as the City’s representative on the County’s Parks and Recreation Council (PARC). The County resolution creating the PARC states that its purpose is to make recommendations to the Board of County Commissioners concerning issues “related to parks, beaches, recreation and the acquisition and use of [n]eighborhood [p]arkland.” The resolution provides that the PARC operates in a purely advisory capacity and makes recommendations solely to the Board of County Commissioners, although it states the PARC shall be staffed by personnel from the County’s Parks and Recreation Department.

You relate that you own a company which—among other things—conducts summer programs concerning water-related activities. In particular, you state your company would like to contract with the County to provide two programs this upcoming summer: a windsurfing program and a camp which will include training on stand-up paddle-boarding and snorkeling. You state your company is “the only windsurfing business located or operating in [the county].”

You advise there is a bidding process for the contracts, and that you anticipate submitting a bid for each contract to a website that serves as an online resource to facilitate competitive bidding. You relate the County’s Parks and Recreation Department will review the bids and make the final selection, and that neither the Board of County Commissioners nor the PARC will be involved in the review or selection of bids.

You inquire whether you will have a prohibited conflict of interest if your company contracts with the County to provide the summer programs while you are serving on the PARC. Your scenario implicates Section 112.313(3), Florida Statutes, and Section 112.313(7)(a), Florida Statutes. Section 112.313(3), Florida Statutes, provides:

DOING BUSINESS WITH AN 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 office 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 office 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.

Absent an exemption or waiver, the second part² of Section 112.313(3) prohibits public officers (a term which, pursuant to Section 112.313(1), Florida Statutes, includes members of advisory bodies) from acting in a private capacity to rent, lease, or sell any realty, goods, or services to their own public agency, or to any other agency of their political subdivision.

We have long held that the “agency” of a member of an advisory board to a governing body is the governing body. See CEO 06-24, CEO 05-10, citing CEO 99-11 and the opinions cited therein, and CEO 94-36 (“agency” of the Broward County Advisory Board for Persons with Disabilities was the county). As your board advises the County Commission, your “agency” is the County Commission, and absent the applicability of an exemption or a waiver—as explained below—of the requirements of Section 112.313(3), a prohibited conflict would exist were your company to provide programs to the County.³

Also applicable to your situation is Section 112.313(7)(a), which states:

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 interest and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties.

We find that were your company to provide the programs to the County, you would be employed by, or hold a contractual relationship with, a business entity (your company) which would be doing business with your public agency (the County Commission). Therefore, absent the applicability of an exemption, or waiver, we find that a prohibited conflict would be created under the first part of Section 112.313(7)(a) were your company to enter into the proposed contracts or provide the programs.

Two statutory exemptions exist which could work to obviate the conflict. The first is Section 112.313(12)(b), Florida Statutes. This exemption applies when the business between a public officer’s company and his or her agency or political subdivision is conducted under a system of sealed, competitive bidding to the lowest or best bidder, and neither the public officer nor his or her spouse or child participate in determining the bid specifications or in awarding the bid, and the officer files the appropriate disclosure.⁴ You indicate here that the summer program contracts will be awarded through a closed bidding process. Assuming the requirements of Section 112.313(12)(b) are met, this exemption could apply to negate the conflicts of interest detailed herein.⁵

Another exemption is found in Section 112.313(12)(e), Florida Statutes. This exemption applies when a public officer’s company is the sole source of supply within the political subdivision, and the officer fully discloses his or her interest prior to the transaction. CE Form 4A (Part B) has been promulgated for this purpose. You indicate your company is the only entity in the County qualified to provide the windsurfing program. Therefore, at least for that program, this exemption apparently is available to negate the conflicts presented.

Finally, waiver may be possible as to your conflicts. Section 112.313(12), Florida Statutes, provides:

The requirements of subsections (3) and (7) as they pertain to persons serving on advisory boards may be waived in a particular instance by the body which appointed the person to the advisory board, upon a full disclosure of the transaction or relationship to the appointing body prior to the waiver and an affirmative vote in favor of waiver by two-thirds of that body. In instances in which appointment to the advisory board is made by an individual, waiver may be effected, after public hearing, by a determination by the appointing person and full disclosure of the transaction or relationship by the appointee to the appointing person.⁶

Absent the applicability of one of the cited exemptions, or a waiver, prohibited conflicts of interest under Sections 112.313(3) and 112.313(7)(a) would exist were your company to contract with the County to provide summer programs.

QUESTION 2:

Would you have a prohibited conflict of interest if your company receives a permit from the County’s Parks and Recreation Department, when your advisory board can make recommendations concerning the permitting program?

Under the circumstances presented, your question is answered in the affirmative.

You next inquire whether you will have a conflict of interest if your company applies for and obtains a permit issued by the County’s Parks and Recreation Department. You state that your company has provided kayak rentals and tours within County parks since 1994. You relate that to address concerns about the overcrowding of vendors within the parks, the Parks and Recreation Department initiated a Commercial Recreation Tour Operators (CRTO) program in 2013. You state this program established a permitting process requiring kayak vendors to apply to the Department annually for a permit. You advise that so long as the vendor is properly insured and pays a fee of $500 per vessel, the Department must issue the permit; in other words, the issuance of the permit is non-discretionary and automatic upon payment.⁷

You ask whether you will run afoul of any conflict of interest provision if your company applies for and obtains a permit from the Department. You state that neither the PARC nor the County Commission are involved in reviewing or issuing the permits. However, you state that the PARC may make recommendations to the County Commission about updating or changing the CRTO guidelines, and that issues concerning the CRTO program and kayak vending permitting may be raised at PARC meetings in the near future. Indeed, you indicate an interest in personally raising issues at meetings concerning the CRTO guidelines.

Again, the statute relevant to your inquiry is Section 112.313(7)(a). The first part of the statute does not apply because your company is neither doing business with nor being regulated by the County Commission.⁸ However, a prohibited conflict will be created under the second part of Section 112.313(7)(a) if your company secures a permit. The second part of the statute prohibits any employment or contractual relationship which could impede a public officer’s ability to fully and faithfully discharge his or her public duties. This provision creates an objective standard which requires an examination of the nature and extent of the public officer’s duties together with a review of his or her private interests to determine whether the two are compatible, separate, and distinct, or whether they coincide to create a situation which “tempts dishonor.” Zerweck v. State Commission on Ethics, 409 So. 2d 57, 61 (Fla. 4th DCA 1982). In this respect, the statute is preventative in nature, and it does not require any intentionally wrongful conduct by a public officer.

Your board—the PARC—advises the County Commission on parks-related issues. In that capacity, the PARC can recommend changes to the CRTO program which will directly affect kayak vendors such as your company. There is an inherent conflict in this situation for you, as you could be tempted to use your position on the PARC to suggest and advocate for recommendations favorable to your company. Such recommendations could include requiring permitted vessels to comply with specifications already met by your company, limiting the number of permits that can be issued, or capping the number of program participants. Recommendations such as these would promote your company’s interests while limiting its competition, thereby creating a conflict with your objective public duties. In arriving at this determination, we do not imply that you would intentionally misuse your position for your own private gain. We are simply finding that—by serving on an advisory board which can make recommendations affecting your private livelihood—you will be placed in a position which “tempts dishonor,” which is all that is required under the statute. As we said in CEO 13-16, Section 112.313(7)(a) is prophylactic in nature and is designed to prevent situations where a public officer’s private economic considerations could influence his or her ability to faithfully discharge his or her public duties.

Again, a waiver granted by the appointing individual or authority pursuant to Section 112.313(12) would negate the conflict. Absent such a waiver, however, a prohibited conflict would exist under the second part of Section 112.313(7)(a) if your company applies for and/or receives a permit through the CRTO program.

QUESTION 3:

Would Section 112.313(6), Florida Statutes, be violated were you to engage in the several actions discussed below?

Your question is answered as set forth below.

Assuming that you successfully obtain a waiver pursuant to Section 112.313(12), your company may participate in the CRTO program while you continue serving on the PARC. However, such a scenario creates further questions—which you raise in your inquiry—concerning the extent to which you may become involved as a PARC member in matters involving the CRTO program.

First, you inquire whether you may place issues concerning the CRTO program on the agenda for PARC meetings. Section 112.313(6), Florida Statutes, states:

MISUSE OF PUBLIC POSITION.—No public officer, employee of an agency, or local government attorney shall corruptly use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others.

Section 112.313(6) prohibits a public officer from “corruptly” using or attempting to use his or her official position in order to secure a special privilege, benefit, or exemption for himself, herself, or another. The term “corruptly” is defined in Section 112.312(9), Florida Statutes, as an action

done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.

While there may be a personal benefit for you in placing items concerning the CRTO program on a PARC meeting agenda—namely, the chance to advocate for changes favorable to your company—there is a public purpose as well, given that the PARC is specifically tasked to make recommendations concerning issues related to county parks. The District Court of Appeal has recognized that Section 112.313(6) will not be violated in situations where there is a valid public purpose for a public officer’s action, notwithstanding that the action provides an incidental private benefit to the officer. See Blackburn v. State Commission on Ethics, 589 So. 2d 431, 435-436 (Fla. 1st DCA 1991). Accordingly, we find that your placing of items concerning the CRTO program on the agenda for PARC meetings would not, by itself, violate Section 112.313(6).

Second, you inquire whether there are any limitations on your discussing matters concerning the CRTO program with members of the Board of County Commissioners, the Board of City Commissioners, or City/County administrative staff. It is difficult to answer your question without knowing the exact content of the discussions or the circumstances in which they will take place. There is no absolute prohibition against speaking to public officials and employees about public policy, even if the issues may affect your company. However, were such conversations to violate the Sunshine Law (Section 286.011, Florida Statutes), Section 112.313(6) could be implicated, as you then would have acted in a manner inconsistent with your public duties. Because we have no authority to interpret the Sunshine Law, we advise you to contact the Attorney General for further advice on situations where it would apply.

Third, you ask whether you may identify yourself as a member of the PREP Board or the PARC when writing columns for or making comments to a local newspaper addressing matters pertaining to the County parks. As previously discussed, Section 112.313(6) will prohibit you from corruptly using or attempting to use your public position to secure a special privilege, benefit, or exemption for yourself or another. In CEO 90-15, we considered whether a city commissioner would violate Section 112.313(6) if he accepted a job with a local newspaper which would require him to write a column on activities related to city government. We found that although the commissioner could use the column to promote his positions on political issues or to criticize the stances of opponents, his actions in writing the column would be taken in his private capacity rather than in his public capacity. Moreover, we stated that while readers might recognize the commissioner’s name on the articles and realize he was a public officer, name recognition also was not sufficient to constitute a use of public office. Therefore, we concluded that so long as the commissioner did not use any public resources to produce the newspaper column, Section 112.313(6) would not apply.

Similarly, here, we find that although your use of the newspaper could achieve benefits for you, such an action, without more, will not violate Section 112.313(6). Because you will not be acting in a public capacity by writing a column or making comments concerning park-related issues, it cannot be said that these actions will be a use of public office under Section 112.313(6). However, if you choose to identify yourself as a PREP Board or PARC member when making such comments, you should emphasize that you are sharing only your personal opinions and not the opinions of the public bodies you serve.

QUESTION 4:

Would you be presented with a voting conflict under Section 112.3143(3)(a), Florida Statutes, concerning measures regarding the guidelines for the CRTO program?

Under the circumstances presented, your question is answered in the affirmative.

You also inquire whether—in the event you receive a waiver—you may engage in discussions at PARC meetings or vote on measures at PARC meetings concerning changing the CRTO program’s guidelines. These questions concern Section 112.3143(3)(a) and Section 112.3143(4), Florida Statutes, which provide:

No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporation parent by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would insure to the special private gain or loss of a relative or business associate of the public officer. [Section 112.3143(3)(a)]

No appointed public officer shall participate in any matter which would inure to the officer’s special private gain or loss; which the officer knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which or she is retained; or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer, without first disclosing the nature of his or her interest in the matter. [Section 112.3143(4)]

And Section 112.3143(1)(d), Florida Statutes, defines “special private gain or loss” as “an economic benefit or harm that would inure to the officer[.]”

Here, recommendations which the PARC makes concerning the CRTO guidelines will likely have an economic effect on you, as you indicate your company’s livelihood depends in part on obtaining kayak permits. For this reason, measures concerning the CRTO guidelines will present a voting conflict and you should respond in accordance with the requirements described in Section 112.3143(3)(a) (i.e., declare your conflict, abstain from the vote, and timely file a CE Form 8B memorandum of voting conflict). Regarding your ability to participate in the discussion of such measures, Section 112.3143(4) prohibits such participation, unless you first have complied with the disclosures and actions required therein (see the instructions on Form 8B for for appointed officers).

Your questions are answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 4, 2016 and RENDERED this 9th day of March, 2016.

____________________________________

Stanley M. Weston, Chair

^[1]You state that your appointment to the PREP Board is not based in any requirement of law or ordinance that you be involved in a particular profession or occupation.

^[2]The first part of the statute does not appear to be implicated under the situation presented.

^[3]Even were we to consider your “agency” to be limited to the PARC, a conflict would still exist, as Section 112.313(3) prohibits the sale of goods or services not just to the “agency,” but to the entire political subdivision.

^[4]CE Form 3A has been promulgated for this purpose. All forms referenced are available at www.ethics.state.fl.us.

^[5]Importantly, this exemption only applies in the context of sealed, competitive bidding, as opposed to an RFP (Request for Proposals), RFQ (Request for Qualifications), or other method of procurement that might be referred to as “bidding.” See CEO 15-2.

^[6]CE Form 4A (Part A) should be used for this disclosure. The waiver discussed in Section 112.313(12) will have to be obtained from the authority or individual who appointed you to the PARC.

^[7]Your comments are supported by the CRTO rules and regulations, which indicate that a vendor must obtain an annual permit from the Department in order to launch non-motorized water vessels or provide water vessel rentals. The rules and regulations indicate that the annual fee for obtaining a permit is $500 per vessel.

^[8]To the extent that the permitting process constitutes “regulation,” it is performed through the Parks and Recreation Department.