CONFLICT OF INTEREST

CITY COMMISSIONER SERVING AS PRESIDENT OF THE EAST SUNRISE
RESIDENTS ASSOCIATION, INC.

To: Name withheld at person's request (City of Sunrise)

SUMMARY:

Where a City Commissioner simultaneously serves as the President of a non-profit organization, but where she is neither a member of the non-profit organization, nor is she employed by the non-profit organization, the Commissioner has no conflict of interest pursuant to Section 112.313(7)(a), Florida Statutes. Further, where the City does not buy, rent, or lease anything from the non-profit organization, no conflict of interest is created pursuant to Section 112.313(3), Florida Statutes. Referenced are CEO 23-2, CEO 19-13, CEO 19-1, CEO 18-13, CEO 14-2, CEO 10-2, CEO 00-23.

QUESTION:

Will a City Commissioner have a prohibited conflict of interest under the Ethics Code if, while serving as a City Commissioner, she also maintains her position as President of the East Sunrise Residents Association, Inc., a nonprofit entity?

This question is answered in the negative.

You are a City Attorney who has requested an ethics opinion on behalf of a City Commissioner ("Commissioner"). According to your inquiry, the Commissioner was sworn into office on November 20, 2024.

Since 2019, the Commissioner has also served as the uncompensated President of the East Sunrise Residents Association, Inc. ("ESRA"). ESRA is a non-profit organization whose stated goals are: "(a) to identify means of beautifying our community; (b) to keep the community informed through meetings and forums; [and] (c) to work together with government officials and community-based municipalities and organizations to improve the conditions of our neighborhood."

You state that ESRA neither has a formal structure, nor does it offer formal membership. You also advise that, as the President of ESRA, the Commissioner's duties include coordinating and conducting meetings and community events as well as signing documents on the non-profit's behalf. You additionally note ESRA is not a party to any contracts or agreements with the City, does not own real property within the City, and is not subject to regulation by the City.

Further, ESRA does not rent, lease, or sell any realty, goods, or services to the City. However, ESRA and the City do interact in the following ways:

(1) ESRA meets monthly in a civic center owned by the City. The City does not charge ESRA for its use of the civic center, and no contract or agreement between the City and ESRA formalizes this arrangement. Many organizations in addition to ESRA are also allowed to use this space.

(2) The City lists ESRA as one of a number of nonprofit organizations on its website.

(3) City employees such as representatives of the Sunrise Police Department and Code Compliance Division regularly attend ESRA meetings.

(4) ESRA holds community events throughout the year, and representatives of the City's Police Department regularly attend these events, sometimes bringing food and/or City-branded items like pens, magnets, and stickers for the residents.

(5) ESRA also holds an annual Christmas event where the Police Department typically delivers gifts for children that are donated to the Police Department by Diamond Wishes Children's Charity. You specifically note that neither ESRA nor the Commissioner solicits these Christmas gifts, and that there has been no increase in gift donations since the Commissioner was sworn into office.

(6) Occasionally, representatives from ESRA attend Commission meetings to support, oppose, or offer public comments on matters that affect its residents. Developers have also asked ESRA to support proposed development projects in the City, and ESRA has supported such projects. Prior to being elected as a commissioner, the Commissioner signed a letter of support addressed to the Mayor and commissioners for a proposed hospital project.

With this background, you ask whether the Commissioner would create a prohibited conflict of interest were she to continue serving as the President of ESRA while simultaneously serving as a commissioner.

To answer this question, analysis under Section 112.313(7)(a), Florida Statutes, is needed. Section 112.313(7)(a) states:

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.

There are two prohibitions in Section 112.313(7)(a). The first part prohibits a public officer from having any contractual relationship or employment with a business entity or an agency that is regulated by or is doing business with his or her agency. The second part prohibits a public officer from having a contractual relationship or employment that will create a continuing or frequently recurring conflict of interest or would create an impediment to the full and faithful discharge of his or her public duties. This requires an examination of the public officer's duties and a review of his or her private employment or contractual relationship "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) (internal quotations omitted).

For there to be a conflict under either prohibition of Section 112.313(7)(a), the public employee must be employed by, or have a contractual relationship with, a business entity or agency. The threshold question, then, is whether the Commissioner has a contractual relationship or employment with the non-profit ESRA.

As to whether the Commissioner has a contractual relationship with ESRA, "we have opined in the past that a public officer's rank-and-file membership in a nonprofit corporation creates a contractual relationship between the public officer and the nonprofit corporation." CEO 23-2. See also CEO 19-1, CEO 14-2, and CEO 10-2. In the current case, though, you inform us that ESRA has neither a formal structure nor a defined membership. You note meetings are open to anyone in the community, and there are no fees, dues, or charges for attendance. You further note that, though the Commissioner acts as President of ESRA, there is no formal agreement or contract between the Commissioner and ESRA establishing her presidency. Based upon your facts, there does not appear to be a contractual relationship between the Commissioner and ESRA.

Regarding whether the Commissioner is employed by ESRA, "[a] necessary element of 'employment' is compensation or some form of consideration." CEO 19-1. See also CEO 18-13, CEO 00-23. Here, you note the Commissioner is unpaid in her role as President of ESRA. Thus, she is not compensated, and is not employed. See CEO 19-1. ("In the past, we have found an uncompensated director or officer of a nonprofit corporation, who is not a member, does not have a 'contractual relationship' with the corporation.").

Pursuant to the facts you have presented, which indicate the Commissioner is neither employed by, nor does she have a contractual relationship with, ESRA, her simultaneous service as City Commissioner and as President of ESRA does not create a prohibited conflict pursuant to either provision of Section 112.313(7)(a).

Another statute pertinent to your inquiry regarding whether the Commissioner would violate any portion of the Ethics Code is Section 112.313(3), which provides:

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.

Section 112.313(3), like Section 112.313(7)(a), is a statutory provision with two separate prohibitions. The first prohibition concerns a public officer or employee who is purchasing, renting, or leasing realty, goods, or services for his or her own agency from a business entity of which he or she, or his or her spouse or child, is an officer, partner, director, proprietor, or the owner of a more than 5% interest in the business entity. The second prohibition concerns a public officer or employee who is acting on behalf of a business entity to sell, rent, or lease realty, goods, or services to his or her own agency or any agency of his or her political subdivision.

Here, the Commissioner, acting as the President of ESRA, is an officer of ESRA. The first part of Section 112.313(3) prohibits her from, on behalf of the City, purchasing, renting, or leasing realty, goods, or services from ESRA. And the second part of Section 112.313(3) prohibits her from, on behalf of ESRA, selling, renting, or leasing realty, goods, or services to the City. In this case, neither prohibition outlined in Section 112.313(3) applies because the facts presented do not indicate any purchasing, renting, leasing, or selling of realty, goods, or services between the City and ESRA.

Thus, it appears the Commissioner's simultaneous service as both a City Commissioner and as the President of ESRA presents no current prohibited conflict of interest pursuant to the Ethics Code. Although no prohibited conflict currently appears to exist, and although the facts in this opinion do not appear to implicate them, we caution the Commissioner, as we caution all public officers, that other prohibitions could apply were the Commissioner to misuse her public position in order to benefit ESRA. In particular, Section 112.313(6), Florida Statutes, and Article II, Section 8(h)(2) of the Florida Constitution prohibit her from misusing or abusing her public position or public resources in any way to assist or offer preferential treatment to ESRA. Additionally, Section 112.313(8), Florida Statutes, prohibits her from disclosing information that is obtained by her in her official capacity and that is not yet available to the general public to ESRA.

Further, the Commissioner should be cognizant of the ethical prohibitions regarding the solicitation and acceptance of gifts if she solicits and/or accepts gifts on behalf of ESRA. As we have opined in previous opinions, the Commissioner, as the uncompensated President, may engage in fundraising for ESRA. See CEO 19-13. The results of such fundraising for donations to the nonprofit organization would not constitute an indirect gift to the Commissioner pursuant to Section 112.3148(4) and Florida Administrative Code Rule 34-13.310(8)(a), as long as she timely delivered any such gifts to ESRA, because: (1) the Commissioner, as the uncompensated President of ESRA, would receive no tangible or concrete benefit as the result of those donations; and (2) if donations are given to ESRA to, for example, be donated to children at ESRA's annual Christmas party, the Commissioner will receive no tangible or concrete benefit, provided she has "no familial, business, or similar private capacity connection to the individuals and entities receiving the [gifts]." CEO 19-13.

The Commissioner should be aware, though, that two other provisions in the Code of Ethics could be triggered, in certain circumstances, by contributions she solicits or receives on ESRA's behalf, regardless of how the contributions are ultimately used. Section 112.313(2), Florida Statutes, prohibits her from soliciting or accepting any donation based on an understanding that the contribution will influence some vote, official action, or judgment that she might make in her capacity as a commissioner. And Section 112.313(4), Florida Statutes, prohibits her from accepting any donation when she knows, or with the exercise of reasonable care should know, that it is being given to influence some action she might take as a commissioner. In light of these statutes, the Commissioner should carefully screen the circumstances of particular solicitations she makes on behalf of ESRA and donations she receives on behalf of ESRA and reach out to the Commission for further guidance should any questions arise.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 7, 2025, and RENDERED this 12th day of March 2025.

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Luis M. Fusté, Chair