CEO 74-58 -- November 15, 1974

CONFLICT OF INTEREST

MAYOR'S PARTICIPATION IN DEVELOPMENTAL HEARINGS AS CONSTITUTING POSSIBLE CONFLICT OF INTEREST WHERE FIRM OF WHICH HE IS AN EMPLOYEE HAS CONTRACTED TO DO WORK FOR SAID DEVELOPMENT CONCERNED

To: Charles W. Flanagan, Mayor, City of Pembroke Pines

Prepared by: Gene L. "Hal" Johnson

SUMMARY:

Mayor Flanagan is an employee of an electrical firm involved in a development project owned by the same interests whose proposed development in Pembroke Pines is under consideration by Mayor Flanagan and the city council. Mayor Flanagan has no ownership interest in the electrical firm. Section 112.313(5), F. S., as amended by Ch. 74-177, Laws of Florida, is interpreted to mean instances in which the nature or scope of the employment creates continuous or recurrent conflict or is a conflict per se. None of the conflict provisions of s. 112.313, supra, are directly applicable to Mayor Flanagan's situation. However, should his particular private interests be served by voting in favor of developers who have contracted with his employer, Mayor Flanagan must file a disclosure of such with the city council and may abstain from voting on the matter. He is urged, as are other public officers, to go beyond the strict letter of the law to a more generous adherence to the Code of Ethics.

QUESTION:

Does my employment by an electrical contractor who has contracted to do electrical work for a developer create a conflict of interest under provisions of part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida, when I, by acting in my official capacity as mayor, participate in development of regional impact hearings concerning said developer's project?

Your question is answered in the negative.

Specifically, you state that you are the Mayor of the City of Pembroke Pines. Recently you, as mayor and member of the city council, have been participating in development of regional impact hearings for a proposed new development in Pembroke Pines. You also point out that you are a salaried employee of an electrical contracting firm which was the low competitive bidder on an electrical job for another development project owned by the same interests whose proposed development in Pembroke Pines is under consideration by the city council.

The problem you wish resolved is whether your participation in these hearings on the new development constitutes a conflict of interest due to your salaried position with the electrical contracting firm even though you have no ownership interest in that firm.

Chapters 74-176 and 74-177, Laws of Florida, rewrote virtually every section of part III, Ch. 112, F. S. Clearly you, as Mayor of the City of Pembroke Pines, are a public officer. Section 112.312(7)(a), F. S., as amended by Ch. 74-177, supra. Section 112.313, F. S., establishes standards of conduct for public officers; however, none of these provisions seem to prohibit the relationship you have with the City of Pembroke Pines and the electrical contracting firm by which you are employed.

Section 112.313(5), supra, states in part:

Other employment. -- No public officer or employee of an agency shall accept other employment with any business entity subject to the regulation of, or doing business with, an agency of which he is an officer or employee nor shall an officer or employee of an agency accept other employment that will create a conflict between his private interests and the performance of his public duties, or will impede the full and faithful discharge of his public duties.

This subsection might seem to have possible application to you. It does not. It is our view that the above-quoted portion of subsection (5) is applicable only in those instances in which the nature or scope of the accepted employment creates a continuous or constantly recurring conflict between one's private interests and his public duties. In such a case the employment is a conflict per se. A good example of such circumstances would be the instance in which a school board member is also a high school principal in the same school district. Although we find none of the conflict provisions of s. 112.313, F. S., applicable to facts you have described, we call your attention to the section dealing with voting conflicts of interest, which states:

No public officer shall be prohibited from voting on any matter in his official capacity. However, when the matter being considered directly or indirectly inures to the public officer's particular private gain, as opposed to his private gain as a member of a special class or creates a conflict between such officer's private interests and his public duties he may abstain from voting on the matter and shall file a statement explaining the conflict with the appropriate officials. [Section 112.314(2), F. S.]

While you could presumably benefit your own private interests by voting in favor of the developers who have contracted with your employer, you are not required to abstain from voting. You must, however, file a statement explaining the conflict with the "appropriate officials," in your case the city council.

In conclusion, we wish to reiterate the position we took in CEO 74-50:

Public officers should not be grudging or miserly in their adherence to the code of ethics. Compliance with the strict letter of the law is not enough, and a generous attitude by public officers towards the full implementation of the code of ethics should be the standard. You and other public officers are encouraged to make full disclosure not only when required by law but also in those situations which may give the appearance of impropriety. You and other similarly situated individuals should recuse yourselves from the consideration of any public matter if for personal reasons you feel you cannot render impartial objective judgment in the matter.