CEO 76-186 -- October 25, 1976

CONFLICT OF INTEREST

COUNCILWOMAN SERVING AS PERSONNEL OFFICER AND CHAIRMAN OF COMMITTEE ON CIVIL SERVICE APPEALS WHILE SPOUSE SERVES ON CIVIL SERVICE BOARD

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

Prepared by: Bonnie Johnson

SUMMARY:

The Code of Ethics prohibits a public employee from holding office as a member of the governing board which is his employer while continuing as an employee of such employer. Fla. Stat. s. 112.313(10)(1975). This provision is not violated, however, where a city councilwoman's responsibilities include her serving as city personnel officer and chairman of the committee for civil service appeals and are part and parcel of her service on the city council. Nor does any provision of the code prohibit a husband and wife from holding office in the same political subdivision, regardless of their respective positions. However, in its statement of legislative intent and declaration of policy, the Code of Ethics provides that "[i]t is essential to the proper conduct and operation of government that public officials be independent and impartial" and that the public interest be protected "against any conflict of interest" on the part of public officials. Fla. Stat. s. 112.311(1)(1975). Where the spouse of city councilwoman (who also serves as city personnel officer and chairman of the committee for civil service appeals) sits on the civil service board, to which further appeals are made and whose members are appointed by the city council, the impartial disposition of personnel appeals is potentially diminished. In such situations, the very highest of ethical standards must be observed or, to preclude even the appearance of impropriety, the city council may wish to consider the appointment of one of its members other than the subject councilwoman to serve in the personnel capacities described above.

QUESTION:

Does a prohibited conflict of interest exist where a city councilwoman serves as the city's personnel officer and chairman of its committee for civil service appeals while her spouse is a member of the civil service board to which appeals from decisions of the appeals committee are made?

Your question is answered in the negative.

You advise in your letter of inquiry and in subsequent conversations with our staff that a member of the city council serves as personnel officer and chairman of the city's committee for civil service appeals, as mandated by a special act of the Legislature. See s. 10, Ch. 27615, 1951, Laws of Florida, as amended by s. 5, Ch. 61-2265, Laws of Florida; s. 11, Ch. 27615, Laws of Florida. In addition to being mandated by law, such additional service is uncompensated. The committee for civil service appeals "hear[s] the appeal of any city employee who feels that he has not received fair treatment by his supervisor and that his official status has been adversely affected thereby." Section 10, Ch. 27615, as amended by s. 5, Ch. 61-2265. Appeals from decisions of the committee for civil service appeals are made to the civil service board. Id. You further advise that the subject councilwoman's spouse serves on the civil service board, whose members are appointed by the city council. Section 6, Ch. 27615, 1951, Laws of Florida.

The Code of Ethics for Public Officers and Employees provides in relevant part as follows:

EMPLOYEES HOLDING OFFICE. -- 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. [Fla. Stat. s. 112.313(10)(1975).]

On the face of your letter of inquiry the above provision would appear to be violated in a councilwoman's concurrent service as city personnel officer. However, as previously noted, you have further advised that the personnel officer position is not one of employment but, rather, is part and parcel of her service on the city council. Accordingly, no violation of the above-quoted s. 112.313(10) is constituted by the councilwoman's concurrent service as city personnel officer. Nor does any other provision of the code prohibit a husband and wife from holding office in the same political subdivision, regardless of their respective positions.

We would point out, however, that in its statement of legislative intent and declaration of policy, the Code of Ethics provides that "[i]t is essential to the proper conduct and operation of government that public officials be independent and impartial" and that the public interest be protected" against any conflict of interest" on the part of public officials. Fla. Stat. s. 112.311(1)(1975). In our view, the impartial disposition of personnel appeals is potentially diminished where the spouse of the city personnel officer and chairman of the committee for civil service appeals sits on the civil service board, to which further appeals are made and whose members are appointed by the city council. In situations of this nature, the very highest of ethical standards must be observed. Alternately, in order to preclude even the appearance of impropriety, the city council may wish to consider the appointment of one of its members other than the subject councilwoman to serve in the personnel capacities described above.

In either case, we wish to direct your attention to s. 112.311(6) of the code, which declares as a matter of public policy that governmental officials "are bound to observe, in their official acts, the highest standards of ethics consistent with this code and the advisory opinions rendered with respect hereto regardless of personal considerations, recognizing that promoting the public interest and maintaining the respect of the people in their government must be of foremost concern."