CEO 76-114 -- June 17, 1976

CONFLICT OF INTEREST

CITY COUNCILMAN PRIVATELY EXECUTIVE DIRECTOR OF A NONPROFIT CORPORATION DOING BUSINESS WITH THE CITY

To: Clyde T. Tolbert, Jr., City Councilman, Riviera Beach

Prepared by: Gene Rhodes

SUMMARY:

No prohibited conflict of interest exists in a city councilman's privately serving as executive director of a nonprofit corporation which entered into a work contract with the city prior to the subject councilman's election to office. Although a public officer is prohibited by Florida Statute s. 112.313(7)(1975) from holding employment with any business entity doing business with his agency, the Code of Ethics further provides that it is not the intent of the law to prevent a public official from following any private pursuit which does not interfere with the full and faithful discharge of his public duties. Fla. Stat. s. 112.316(1975). Inasmuch as the contract was entered into prior to the executive director's being elected to the city council, no conflict of interest is deemed to exist in the corporation's fulfilling the terms of that contract. Any future contracts between the city and the corporation, however, are prohibited so long as the executive director sits on the city council.

QUESTION:

Does a prohibited conflict of interest exist where I, a city councilman, am employed by a nonprofit corporation that entered a contract with the city before I was elected to the city council?

This question is answered in the negative.

Your letter of inquiry advises us that you have been the executive director of the nonprofit corporation for the last 6 years. The corporation receives federal funds and must raise 25 percent matching funds which are generated through private donations, client fees, and work contracts. In August 1975 -- before you became a city councilman -- the corporation negotiated a work contract with the city.

The Code of Ethics for Public Officers and Employees provides in relevant 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 with a business entity which is doing business with his public agency. It would seem, therefore, that the situation you describe constitutes a prohibited conflict under the Code of Ethics; however, each provision of the Code of Ethics must be read in light of the following section.

Construction. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Fla. Stat. s. 112.316(1975).]

This provision makes it clear that the Code of Ethics shall not be construed to prohibit a public officer from accepting employment which does not interfere with the full and faithful discharge of his public duties. In our view, your employment with a corporation that entered a contract with the city before your election to the city council does not interfere with the full and faithful discharge of your public duties. However, s. 112.313(7), quoted above, would prohibit your having employment with the corporation while holding your seat on the city council were any future contracts made between your private employer and your public agency.