CEO 76-105 -- June 17, 1976

CONFLICT OF INTEREST

CITY ENGINEER SERVING ON COUNTY WATER ADVISORY BOARD

To: W. W. Caldwell, Jr., City Attorney, Fort Lauderdale

Prepared by: Bonnie Johnson

SUMMARY:

Florida Statute s. 112.313(7)(1975) prohibits a public officer or employee from holding employment with an agency subject to the regulation of his public agency. A member of a county water advisory board is not prohibited from holding employment as city engineer for a municipality within the county, however, as the board does not regulate cities but advises the county environmental quality control board. It is further provided in paragraph (b) of s. 112.313(7) that a public officer or employee is not prohibited from practicing in a particular profession or occupation when such practice by a public official is required or permitted by law or ordinance. This section does not permit a city to provide by ordinance that a city engineer may serve in a position which otherwise would be prohibited by s. 112.313(7)(a), however, for "city engineer" designates a position rather than a profession and therefore goes beyond the intent of subsection (7).

QUESTION:

Is a prohibited conflict of interest created where a city engineer is appointed to serve on the county water resources advisory board?

Your question is answered in the negative.

It is our understanding, based upon your letter of inquiry and other relevant information furnished our staff, that the county water resources advisory board consists of three to five residents of the county appointed by the board of county commissioners. In addition to these appointees, four cities within the county may each appoint a representative to serve on the board, provided such appointee of each city is a duly qualified engineer registered in this state. Section 8, Ch. 61-1969, Laws of Florida, as amended by Ch. 63-1186, Laws of Florida. Customarily, your city has appointed the city engineer as its representative on the board. Under the revised standards of conduct provisions of the Code of Ethics, however, a question has arisen as to a possible violation of Fla. Stat. s. 112.313(7)(1975). That provision is as follows:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. --

(a) 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, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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.

1. When the agency referred to is that certain kind of special tax district created by general or special law and is limited specifically to constructing, maintaining, managing, and financing improvements in the land area over which the agency has jurisdiction, or when the agency has been organized pursuant to chapter 298, then employment with, or entering into a contractual relationship with, such business entity by a public officer or employee of such agency shall not be prohibited by this subsection or be deemed a conflict per se. However, conduct by such officer or employee that is prohibited by, or otherwise frustrates the intent of this section shall be deemed a conflict of interest in violation of the standards of conduct set forth by this section.

2. When the agency referred to is a legislative body and the regulatory power over the business entity resides in another agency, or when the regulatory power which the legislative body exercises over the business entity or agency is strictly through the enactment of laws or ordinances, then employment or a contractual relationship with such business entity by a public officer or employee of a legislative body shall not be prohibited by this subsection or be deemed a conflict.

(b) This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance. (Emphasis supplied.)

Thus, a public officer is prohibited from holding employment with an agency subject to the regulation of that officer's agency. The subject city engineer is a public officer by virtue of his membership on the water resources advisory board and, accordingly, is prohibited from holding employment with an agency subject to the board's regulation. You inform us in your letter of inquiry, however, that the board serves as an advisory body to the environmental quality control board of the county which, in turn, has the power to regulate environmentally related activities of cities within the county. The water resources advisory board does not regulate cities but advises the environmental quality control board. Nor do the other duties of the board, as set forth in s. 9, Ch. 61-1969, encompass any regulation of cities within the county. Consequently, s. 112.313(7) is not breached by a city engineer's sitting on the county water resources advisory board.

Pursuant to the above determination, your second question relating to the exception contained in s. 112.313(7)(b) becomes moot. You inform us, however, that County Ordinance No. 76-15, permitting a city engineer's serving on the county water resources advisory board, was enacted so as to comply with that provision of the law. Implicit in your second inquiry, therefore, is the question of whether the language contained in the ordinance would meet the standard set forth in s. 112.313(7)(b), quoted above. It is our opinion, for your future reference, that the phrase "city engineer" specifies a position, not a profession or occupation. Thus, the law may require or permit an engineer, i.e., one in the engineering profession, to serve on the board (as it currently does), but the enumeration of specific titles or positions, like city engineer, goes beyond the intent to recognize that certain kinds of expertise may be necessary for particular boards.