CEO 75-219 -- December 15, 1975

CONFLICT OF INTEREST

MUNICIPAL EMPLOYEE OWNER OF HARDWARE STORE DOING BUSINESS WITH THE CITY

To: (Name withheld at the person's request.)

Prepared by: Bonnie Johnson

SUMMARY:

Where an individual is retained by a municipality as a building inspector on an "as required" basis at a fixed monthly stipend and where he enjoys no benefits provided employees of the city, such individual is deemed to be an independent contractor rather than a city employee. Reference is made to CEO 74-6. The part-time building inspector therefore may, in his private capacity as owner and manager of a hardware store, do business with the city. As he is neither a public officer nor employee, he is not subject to the Code of Ethics for Public Officers and Employees.

QUESTION:

Does a prohibited conflict of interest exist where a part-time municipal building inspector is the owner of a hardware store which does business with the city by which he is employed?

Your question is answered in the negative.

You inform us in your letter of inquiry that the subject employee has been retained as a building inspector for the city on an "as required" basis for several years, and is paid a straight $100 monthly for his services. His principal occupation is the ownership and management of a hardware store, and he enjoys none of the fringe benefits -- vacation, retirement, etc. -- provided employees of the city. In our view, the subject person's status is that of an independent contractor rather than an employee. See CEO 74-6, a copy of which is enclosed.

The Code of Ethics for Public Officers and Employees, though intentionally broad in scope, does not reach private citizens who are retained by state or local governmental agencies on an individual contractual basis. Accordingly, the subject part-time building inspector is not deemed to be a public employee subject to the Code of Ethics.