CEO 76-109 -- June 17, 1976

CONFLICT OF INTEREST

CITY COMMISSIONER MEMBER OF VOLUNTEER FIRE DEPARTMENT

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

Prepared by: Gene Rhodes

SUMMARY:

A public officer is prohibited from holding employment with any business entity or agency which is subject to the regulation of his public agency. Fla. Stat. s. 112.313(7)(1975). Accordingly, a city commissioner is prohibited from serving, with pay, as a member of the city's volunteer fire department. Florida Statute s. 112.313(10)(1975) further prohibits a public employee from holding office as a member of the governing board which is his employer. As the city commission is the employer body for fire department workers, this provision too would be breached by the subject employment.

QUESTION:

Does a prohibited conflict of interest exist where a city commissioner is a member of the city's volunteer fire department, for which he annually receives $250 from the city?

Your question is answered in the affirmative.

You advise us in your letter of inquiry that prior to the city commissioner's election to that office in March of 1976, he was a member of the city's volunteer fire department. The members of the volunteer department are under the jurisdiction and subject to the orders of the head of the city's full-time fire department. Volunteers receive $250 annually, which is paid out of the fire department's budget.

Two provisions of the Code of Ethics for Public Officers and Employees are relevant to this question. The first provision states in pertinent part:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- No public officer or employee of an agency shall have or hold any employment or contractual relationship with 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. [Fla. Stat. s. 112.313(7)(a)(1975); emphasis supplied.]

This provision prohibits a public officer from having employment or a contractual relationship with an agency which is subject to the regulation of any agency of which he is an officer. As a city commissioner and a volunteer fireman, the subject individual's agencies are the city commission and the fire department, respectively. See Fla. Stat. s. 112.312(2)(1975). The city fire department obviously is subject to the regulation of the city commission. In our view, the payment of $250 in consideration of the commissioner's services as a volunteer fireman constitutes both employment and a contractual relationship. Consequently, the above- quoted provision prohibits the subject city commissioner from holding that position while concurrently being employed by and holding a contractual relationship with the city fire department.

The Code of Ethics further states:

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).]

This provision prohibits an employee of a city from holding office as a member of the governing board which is his employer. The subject city commissioner was elected in March of 1976; therefore, the exemption contained in paragraph (b) of the above-quoted provision does not apply as the effective date of that subsection was prior to March of 1976. Consequently, the subject city commissioner is prohibited by s. 112.313(7) and (10) from holding that office and concurrently either being employed by or having a contractual relationship with the city fire department.