CEO 76-187 -- October 25, 1976

CONFLICT OF INTEREST

SIMULTANEOUS SERVICE AS CITY COMMISSIONER AND VOLUNTEER FIREMAN

To: Frank J. Rouse, Fort Meade City Attorney, Bartow

Prepared by: Roger Merriam

SUMMARY:

Florida Statute s. 112.313(10)(1975) prohibits a public employee from holding office as a member of the governing board which is employer while continuing as an employee of such employer. Accordingly, a city commissioner is prohibited from holding employment with the city as a volunteer fireman. Where such employment began prior to the effective date of the revised standards of conduct provisions of the law, however, the city commissioner/fireman is exempt from provisions of the above-cited statute pursuant to the grandfather clause contained in s. 112.313(10)(b). But s. 112.313(7)(a) of the Code of Ethics further prohibits a public officer from holding employment with a business entity or agency regulated by his public agency. As that provision contains no grandfather clause, a city commissioner who is compensated by the city for service as a volunteer fireman holds conflicting employment pursuant to s. 112.313(7)(a).

QUESTION:

Does a prohibited conflict of interest exist where a city commissioner serves as a volunteer fireman, for which service he is compensated by the city?

This question is answered in the affirmative.

You inform us in your letter of inquiry that a member of the city commission also serves as a member of the city's volunteer fire department. The subject city commissioner has informed us that he has served on the commission since 1970 and has been a volunteer fireman since 1958. You further relate that the city commission employs a city manager who is responsible for hiring a fire chief who, in turn, supervises volunteer firemen. You also state that volunteer firemen are paid by the city on the basis of the number of "fire calls" they respond to and that, while serving as volunteers, they are covered by workmen's compensation.

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

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).]

Accordingly, one is prohibited from being a member of a municipality's governing body while simultaneously being employed by the municipality. We have previously ruled in CEO 76-109 that a volunteer fireman who is paid an annual salary by the city constitutes an employee of that city. Although the method of compensation is different in the instant case, the volunteer fireman nonetheless constitutes an employee of the city for purposes of the Code of Ethics. Therefore, Florida Statute s. 112.313(10)(a) is applicable to your inquiry.

However, paragraph (b) of s. 112.313(10) stipulates that the prohibition contained in paragraph (a) does not apply to persons who held office in violation of that provision prior to the effective date of the act in which subsection (10) is contained. Section 112.313(10) was created by Ch. 75-208, Laws of Florida, which carries an effective date of October 1, 1975. As the city commissioner in question was holding office in violation of subsection (10) prior to that date, the prohibition in subsection (10)(a) is inapplicable to him. Your attention is directed, however, to the last sentence in subsection (10)(b), requiring that the city commissioner in question resign his conflicting employment prior to seeking reelection to the city commission.

The Code of Ethics further provides as follows:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- 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)(a)(1975).]

The language above precludes a public officer from being employed by an agency which is regulated by his public agency.

As discussed above, this commission has ruled previously in CEO 76-109, a copy of which is enclosed, that service as a volunteer fireman by a city commissioner is prohibited by Florida Statute s. 112.313(7). As we perceive no significant factual distinction between the circumstances on which that opinion was based and the situation presently before us, we find the rationale contained therein relating to s. 112.313(7) to be equally applicable to your inquiry.

You suggest in your letter of inquiry that the city commission does not regulate the fire department inasmuch as it is the city manager who employs the fire chief, who, in turn, supervises volunteer firemen. In a previous opinion to you, CEO 76-15, however, we found that the city commission and the city manager are integral parts of the same agency within the meaning of Florida Statute s. 112.312(2). As an agency, they are empowered to employ or discharge the fire chief and to appropriate money for fire department operations, thus regulating that department to a significant degree. In our view, the mandate of s. 112.313(7) accordingly is violated where a city commissioner simultaneously is employed by the city as a volunteer fireman.