CEO 76-32 -- February 13, 1976

CONFLICT OF INTEREST

ELECTED TOWN CLERK ADDITIONALLY AN EMPLOYEE OF THE TOWN

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

Prepared by: Gene Rhodes

SUMMARY:

Florida Statute s. 112.313(10)(1975) prohibits a public employee from holding office as a member of the governing board which is his employer. The provision would not prohibit an elected town clerk from holding employment as manager of the town water and sewer systems, however, inasmuch as the clerk does not serve as the governing body of city systems or agencies. Although said situation is not prohibited by any provision of the Code of Ethics, this commission lacks jurisdiction to offer an opinion as to possible restrictions under provisions of the Constitution or other laws or ordinances.

QUESTION:

Does a prohibited conflict of interest under the Code of Ethics for Public Officers and Employees exist where an elected town clerk is additionally employed by the town council as manager of the town water and sewer systems?

Your question in answered in the negative.

Your letter of inquiry advises us that the town clerk is responsible for maintaining the town records, reporting the minutes of meetings, countersigning checks, and other ministerial duties. As manager of the town's water and sewer systems, the clerk receives an annual salary of approximately $11,000 and is primarily responsible for submitting bills to residents of the town for water and sewer service, terminating service when bills are not paid, and other ministerial duties which do not involve policymaking.

The Code of Ethics for Public Officers and Employees states in relevant part:

EMPLOYEES HOLDING OFFICE. --

(a) No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his employer while, at the same time, continuing as an employee of such employer.

(b) The provisions of this subsection shall not apply to any person holding office in violation of such provisions on the effective date of this act. However, such a person shall surrender his conflicting employment prior to seeking reelection or accepting reappointment to office. [Fla. Stat. s. 112.313(10)(1975).]

The above-quoted provision prohibits a municipal employee from holding office as a member of the governing board which is his employer while, at the same time, continuing as an employee of such employer. This provision does not prohibit the employment you describe because the clerk does not serve as the governing body of the sewer and water systems.

The Code of Ethics for Public Officers and Employees further 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 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. . . . [Fla. Stat. s. 112.313(7)(a)(1975).]

This provision prohibits a public officer from holding employment with any agency which is subject to the regulation of the agency of which he is an officer. It does not apply to the case in question, however, as the town water and sewer systems are not subject to the regulation of the town clerk.

Please note that this opinion addresses your question only in relation to the provisions of the Code of Ethics for Public Officers and Employees. This commission lacks jurisdiction to offer an opinion as to possible restrictions under provisions of the Constitution or other laws or ordinances of the state and its political subdivisions. See Fla. Stat. s. 112.322(2)(a)(1975).