CEO 76-119 -- July 26, 1976

CONFLICT OF INTEREST

CITY COUNCILMAN BIDDING ON CONTRACT WITH ORGANIZATION DOING BUSINESS WITH THE CITY

To: Charles D. Waller, Zephyrhills City Attorney, Dade City

Prepared by: Bonnie Johnson

SUMMARY:

Where a city leases property to the municipal Little League, Inc. at the rate of $1 per year, such lease is deemed to amount in fact to the donation of said property by the city rather than to constitute "doing business" as contemplated by the Code of Ethics. Accordingly, a city councilman is not prohibited by Florida Statute s. 112.313(3)(1975) from bidding on and, potentially, building bleachers for the league, a nonprofit, public service corporation devoted to the operation and promotion of city baseball programs. Reference is made to Florida Statute s. 112.316(1975) which provides that it is not the intent of the code to prevent public officials from following private pursuits which do not interfere with the full and faithful discharge of their public duties.

QUESTION:

Would a prohibited conflict of interest be created were a city councilman to contract for the building of bleachers with the municipal Little League, Inc., where the city leases to the league the land on which the bleachers are to be built?

Your question is answered in the negative.

You advise us in your letter of inquiry that the city leases for $1 a year a portion of the municipal airport to the Little League, Inc., such lease providing that any improvements thereon become the property of the city. Too, the city council has made a gift of city funds in the amount of $350 to the league. The subject city councilman has been requested by the league to submit a bid for the construction of bleachers on the leased property and wishes to know whether, should his bid be accepted, such private contract would conflict with his public duty as a councilman.

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

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 . . . ; 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)(1975).]

A public officer accordingly is prohibited from having a contractual relationship with a business entity which does business with the officer's public agency. However, the Code of Ethics also provides as follows:

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).]

The Zephyrhills Little League, Inc. is a nonprofit corporation devoted to public service in its operation and promotion of city baseball programs. Strictly speaking, it constitutes a "business entity" pursuant to the definition of that term as contained in Fla. Stat. s. 112.312(3)(1975), and its leasing of land belonging to the city constitutes "doing business." In reality, however, the Little League constitutes a public service program which realizes no profit from its service. Similarly, the lease of property from the city at the rate of $1 per year amounts in fact to the city's donating land to serve as a city baseball park. The essential intent of s. 112.313(7) is to preclude a public official from using his public position to generate business for himself or his employer. We see no such conflict in the instant case and therefore rely on the mandate expressed in s. 112.316, quoted above, in perceiving no private pursuit which would interfere with the full and faithful discharge of the councilman's public duties in his bidding on and potentially building bleachers for the Little League, Inc.