CONFLICT OF INTEREST; VOTING CONFLICT

COUNTY COMMISSIONER SERVING SIMULTANEOUSLY
IN UNPAID POSITION AS COUNTY SURVEYOR

To: Name withheld (Monroe County)

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a county commissioner to serve simultaneously as the county's surveyor, regardless of whether he is hired as a county employee or as an independent contractor, and regardless of whether he accepts compensation for his services. Were the county commission to vote on creating the position, the county commissioner would not have a voting conflict under Section 112.3143, Florida Statutes, considering that he would be prohibited from serving in the position while still a commissioner. However, if he intends to apply for the position in the future, after his tenure on the commission ends, it is recommended that he abstain from the vote pursuant to Section 286.012, Florida Statutes, to avoid any appearance of impropriety. Referenced are CEO 20-8, CEO 20-3, CEO 19-13, CEO 19-1, CEO 18-4, CEO 14-27, CEO 08-8, CEO 07-9, CEO 95-28, CEO 92-36, CEO 92-28, CEO 81-73, and CEO 77-182.¹

QUESTION 1:

Would a county commissioner have a prohibited conflict of interest under the Code of Ethics were he to accept employment with the county as county surveyor for no compensation?

Your question is answered in the affirmative.

In your letter of inquiry, you ask on behalf of a member of the Monroe County Commission whether it would be permissible for him to serve, in an unpaid capacity, as the County Surveyor. You indicate the County has not employed an in-house County Surveyor for years, and, instead, has engaged licensed surveyors as independent contractors or subcontractors for specific projects when the need has arisen. However, you relate a current County Commissioner is a licensed land surveyor and, as part of his campaign, advocated for the County to re-establish the position of County Surveyor. Currently, you indicate the question on whether to create the position of County Surveyor is under discussion by the County Commission.

You state the position, if created, would have multiple responsibilities, such as addressing platting errors, establishing the locations of County rights-of-way, and issuing elevation certificates. Importantly, you indicate the County Surveyor more than likely will be a County employee reporting to a department head who, in turn, will report to the County Administrator or Assistant County Administrator. In this scenario, where the County Surveyor reports to a department head, you relate the department head will handle the selection process, subject to the approval of the County Administrator or the Assistant County Administrator, and the County Commission will have no role in the selection process or in confirming the individual selected for the position.

However, you indicate there is another possibility concerning the creation of the County Surveyor position, namely that the County Commission, if it decides to create the position, will classify it as a department head directly reportable to the County Administrator or the Assistant County Administrator. In that scenario, where the County Surveyor is considered a department head, you state the County Administrator or the Assistant County Administrator will make an initial selection for the position and the County Commission will have to confirm the decision.²

Regardless of whether the County Surveyor is considered a department head or the subordinate of a department head, you indicate the position, if created, will be publicly advertised and open to all applicants, as per County policy. Moreover, you relate that, in the event that the position is created, it will be a salaried position provided for in the County budget.

Given the foregoing, you inquire whether the County Commissioner will have a prohibited conflict of interest under the Code of Ethics were he to be employed as County Surveyor while still serving on the Commission. You relate that, in the event the position is created and he is selected, he is willing to serve in an unpaid capacity during his tenure on the County Commission, although he is interested in being compensated going forward after his service on the Commission has ended.

Your scenario implicates Section 112.313(7)(a), Florida Statutes, 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, any agency of which he 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), Florida Statutes.]

In part, Section 112.313(7)(a), prohibits a public officer from having a contractual relationship or employment that will create a "continuing or frequently recurring" conflict of interest, or that will "impede the full and faithful discharge" of his public duties. The term "conflict" or "conflict of interest," as used in this portion of statute, is defined in Section 112.312(8), Florida Statutes, to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest."

This prohibition in Section 112.13(7)(a) "is grounded on the principal that one cannot serve two masters," and calls for a comparison between an officer's public responsibilities and his private interests to "'determine whether the two are compatible, separate, and distinct, or whether they coincide to create a situation which tempts dishonor.'" CEO 18-4, citing Zerweck v. State, Commission on Ethics, 409 So.2d 57, 61 (Fla. 4th DCA 1982). In this regard, Section 112.313(7)(a) is entirely preventative in nature and is concerned with what might happen, prohibiting a public officer from accepting any employment or contractual relationship that could tempt him to dishonor his public duties. See CEO 20-8, Question 4 (finding a prohibited conflict of interest if a city councilmember represents clients before subordinate boards or staff, given the temptation to use his authority and influence on the client's behalf); CEO 14-27 (finding a prohibited conflict of interest if a school board member hires district teachers to provide private tutoring services, given the that the board member might be tempted to act less objectively in disciplinary proceedings against the teacher); CEO 07-9 (finding a prohibited conflict of interest if a contract manager with the Department of Children and Families were to be employed by a subcontractor working on a Department contract, given the temptation to manage the contract in the manner most beneficial to the subcontractor).

Here, if the County Commission indeed creates the position of County Surveyor, and if the County Commissioner is hired to serve in that position, he will not have "employment" with the County for the purpose of Section 112.313(7)(a) if he accepts no compensation or other consideration. This is because a necessary element of the term "employment," for the purpose of Section 112.313(7)(a), is receiving compensation or some other form of consideration. See CEO 19-13, Question 4 and CEO 19-1, Question 1. However, he still will have a "contractual relationship" with the County because providing licensed professional services, such as surveying work under a professional surveyors and mappers' license, creates a contractual relationship between the license holder and the client, even when no compensation is involved. See CEO 14-27, n.6, CEO 08-8, Question 2, and CEO 95-28.

The question then becomes whether the County Commissioner's simultaneous service as County Surveyor will place him in a position that could "tempt dishonor," which is all that is needed to violate Section 112.313(7)(a). While you indicate the County Commission will not be directly supervising the position of County Surveyor, and may not even be involved in the selection process, a scenario in which this serving County Commissioner fills the position is rife with conceivable situations where he could be tempted to use the influence of his position as a member of the County's governing body to influence how work is performed. For instance, if there were differences of opinion between the Commissioner and his supervisor concerning judgements made in his position as County Surveyor, or if there was a disagreement about the scope or quality of the work that he performed as County Surveyor, there would be at least a temptation to use his influence as a County Commissioner to affect the outcome of the disagreement. The potential for conflict only intensifies when considering the temptation to affect the outcome of performance reviews or even disciplinary proceedings addressing his performance as County Surveyor. While this reasoning is not meant to imply the Commissioner would intentionally misuse his position in such situations, there would at the least be a temptation to do so, which, again, is all that is needed to constitute a violation of Section 112.313(7)(a).

We are mindful that Section 112.313(12)(f), Florida Statutes, creates a statutory exemption to at least a portion of Section 112.313(7)(a) when "the total amount of the transactions in the aggregate between the business entity and the agency does not exceed $500 per calendar year." However, even assuming the County Commissioner receives no compensation or consideration for performing the services of County Surveyor during his tenure on the Commission, the exemption still does not apply here. Traditionally, the Commission has applied the exemption in Section 112.313(12)(f) only where a transaction or sale between a public officer/public employee and his agency, or a series of such transactions or sales, annually totals less than $500. See CEO 92-28, CEO 81-73 and CEO 77-182. In at least one prior advisory opinion, the Commission expressly excluded from this annual total any amount which a public officer/employee is being paid pursuant to an employment contract, implying that a public salary is not the type of transactional activity that the exemption is meant to address. See CEO 92-36, Question 1.

Moreover, it is a well-recognized principal of statutory construction that exemptions, such as those found in Section 112.313(12), must be narrowly and strictly construed against the individual attempting to take advantage of them (Samara Development Corp. v. Marlow, 556 So.2d 1097 (Fla. 1990)), and statutory provisions in general should not be applied in a manner that will lead to an absurd result. McKibben v. Mallory, 298 So.2d 48, 51 (Fla. 1974). To apply the exemption here, thereby allowing public officers to serve in multiple positions within their agencies so long as they accept no compensation, despite the multiple conflicts of interest inherent in such scenarios, would create an exception that would consume the purpose of Section 112.313(7)(a), which is to prohibit even the possibility of undue official influence.

For these reasons, we find that if the County Commission creates the position of County Surveyor, the County Commissioner would have a prohibited conflict of interest under Section 112.313(7)(a) were he to serve in that position during his tenure on the County Commission, even if he accepts no compensation or other consideration.³

Question 1 is answered accordingly.

QUESTION 2:

Would a county commissioner have a prohibited conflict of interest under the Code of Ethics were he to perform the duties of county surveyor as an outside contractor for no compensation?

Question 2 is answered in the affirmative.

While you indicate the County Surveyor position, if created, likely will be considered a County employee, you also present an alternate scenario in which the County Surveyor is hired as an outside contractor. You indicate the County Commissioner—if engaged as an outside contractor—will accept no compensation to perform the duties of the County Surveyor, and you inquire whether this scenario presents any prohibited conflict of interest if he continues serving on the County Commission.

Regardless of whether the position is filled by a County employee or an independent contractor, and regardless of whether the position is compensated, the County Commissioner still will have a contractual relationship (via the performance of surveying duties under his professional license) that could create potential conflicts of interest, thereby triggering 112.313(7)(a), as discussed in Question One. The potential for conflicts does not dissipate simply because he is a private contractor as opposed to an in-house employee of the County.

Question 2 is answered accordingly.

QUESTION 3:

Would a county commissioner be presented with a voting conflict under Section 112.3143(3)(a), Florida Statutes, were he to vote on a proposition to create the County Surveyor position, whether the position is created as an employee or an outside contractor?

Under the circumstances presented, Question 3 is answered in the negative.

You also inquire whether Section 112.3143, Florida Statutes, the voting conflict law, will prohibit the County Commissioner from voting on a measure to create the County Surveyor position, whether the position is designated as an in-house employee of the County or as an outside contractor. You emphasize in your inquiry that the County Commissioner hopes to secure the position if it is created, yet he will take no compensation or consideration for his services while still serving on the County Commission.

Section 112.3143(3)(a) provides:

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.

The statute prohibits the County Commissioner from voting on any measure that will inure to his special private gain or loss, or to the special private gain or loss of the other persons or entities listed in the statute. And Section 112.3143(1)(d), Florida Statutes, states the phrase "special private gain or loss" means "an economic benefit or harm ... ."

The analysis in Questions One and Two renders moot the question of whether the County Commissioner will have a voting conflict on a proposal to create the position. Because Section 112.313(7)(a) prohibits him from accepting the position while serving on the County Commission, it cannot be said that voting on creating the position will inure to his special private gain or loss. In other words, because he is prohibited from serving as County Surveyor while still on the Commission, the vote on creating the position will not have the personal economic effect needed to trigger the voting conflict statute.

Nevertheless, while the Commissioner may not have a voting conflict under Section 112.3143(3)(a), if he intends to apply for the position in the future—after his tenure on the County Commission ends—it may not foster public confidence in government for him to vote on creating the position now, especially considering that he has been a strong proponent of establishing it. Therefore, if he feels certain that he will be applying to serve as County Surveyor after leaving the County Commission, he may want to abstain from the vote pursuant to Section 286.012, Florida Statutes.⁴ This provision allows a public officer to abstain when there is, or appears to be, a possible voting conflict, in the interest of fostering transparency in government. See CEO 20-3, Question 3. Should the Commissioner abstain under Section 286.012, he should comply with all of the steps for responding to a voting conflict as described in Section 112.3143(3)(a). See CE Form 8B.

Your inquiry is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 16, 2021, and RENDERED 21st day of April, 2021.

____________________________________

JoAnne Leznoff, Chair

^[1]Prior opinions of the Commission on Ethics can be viewed at www.ethics.state.fl.us.