CEO 76-133 -- July 26, 1976

CONFLICT OF INTEREST

CITY COUNCILMAN DIRECTOR OF NONPROFIT CORPORATION HAVING CONTRACT WITH THE CITY

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

Prepared by: Gene Rhodes

SUMMARY:

The Code of Ethics prohibits a public officer from acting in his official capacity to purchase services for his agency from a business entity of which he is a director. Fla. Stat. s. 112.313(3)(1975). The commission has previously held that being a member of a voting body constitutes acting in one's official capacity relative to action taken by the body as a whole. Where a city councilman privately serves as a director of a zoological society which holds a contract for the operation of that city's zoo, but where said contract was entered into prior to the councilman's privately becoming a director of the society, no conflict of interest is deemed to exist inasmuch as the purchase of services occurred prior to his private affiliation with the society. Consequently, he is not prohibited from serving on the city council and on the society's board of directors during the term of the current contract.

QUESTION:

Does a prohibited conflict of interest exist where I, a city councilman, serve as a member of the board of directors of a nonprofit corporation that has a contract with the city for operation of the city's zoo?

This question is answered in the negative.

The contract enclosed with your letter of inquiry indicates that in 1971 your city entered into said contract for the management of the city's zoo with the ____ Zoological Society, a Florida nonprofit corporation, whose purpose is the acquiring and operating of zoological parks and gardens. The contract provides that two members of the city council shall be members of the board of directors of the society. In 1971 you were appointed as one of these members for a 1- year term. After this appointive term expired, you became a dues- paying member of the society and subsequently were elected to the board of directors in your private capacity.

The Code of Ethics for Public Officers and Employees prohibits a public officer from acting in his official capacity to purchase services for his agency from a business entity of which he is a director. Fla. Stat. s. 112.313(3)(1975). The subject contract obviously is one for the purchase of services, and nonprofit corporations are business entities under the code. Fla. Stat. s. 112.312(3)(1975). In a previous opinion of this commission, CEO 75-201, we held that being a member of a voting body constitutes acting in one's official capacity relative to action taken by the body as a whole. Therefore, the issue here is when the city council acted to purchase the subject services. In our view, the council acted to purchase when it voted to enter into the contract, as opposed to its acting each time it passes on a ministerial matter related to the performance of the contract. The vote to enter the contract took place in 1971, more than a year prior to your being elected to the board of directors of the society. Accordingly, you did not act in your official capacity to purchase services from the society at the time you served as a director.

Consequently, you are not prohibited from concurrently serving on the city council and on the society's board of directors during the term of the current contract.