CEO 76-206 -- November 18, 1976

CONFLICT OF INTEREST

SPOUSE OF MEMBER OF BOARD OF FIRE COMMISSIONERS OF AREA FIRE CONTROL DISTRICT EMPLOYED BY DISTRICT AS A LIEUTENANT

To: Richard L. Smith, Attorney, Sarasota

Prepared by: Phil Claypool

SUMMARY:

No provision of the Code of Ethics prohibits the spouse of a member of a board of fire commissioners of a fire control district from being employed by that district. However, from time to time situations may arise in which the board of fire commissioners will consider a measure in which the subject commissioner has "a personal, private, or professional interest" which inures to her "special private gain." Florida Statute s. 112.3143(1975). An example of such situation would be the board's voting on the salaries of district employees. In that case, as in all cases of voting conflict, the subject commissioner may abstain from voting. Alternatively, she may elect to vote and file a Memorandum of Voting Conflict, CE Form 4, with the person recording the minutes of the meeting at which the vote occurred. It is pointed out that the Ethics Commission lacks jurisdiction to advise as to the possible applicability of other provisions of the Florida Statutes, for example, s. 116.111, the anti-nepotism law.

QUESTION:

Does a prohibited conflict of interest exist where the spouse of a member of the board of fire commissioners of a fire control district is employed by that district as a lieutenant?

Your question is answered in the negative.

You have advised in your letter of inquiry and in a subsequent telephone conversation with a member of our staff that Mrs. Elizabeth Coleman is an elected member of the Board of Fire Commissioners of the South Trail Area Fire Control District. The board of fire commissioners, established by Ch. 65-2241, Laws of Florida, as amended, is the governing, policymaking body for the district and has the authority to hire necessary personnel, to set salaries, to confirm certain promotions, and to hear disciplinary appeals involving employees. Mrs. Coleman's husband, Mr. Ronald E. Coleman, is presently employed as a lieutenant by the district. Jurisdiction of the board over lieutenants is restricted to matters of salaries, promotion confirmations, and disciplinary appeals; the duties of lieutenants are left to the discretion of the district fire chief, who is their superior.

There are only two subsections of the Code of Ethics for Public Officers and Employees which specifically pertain to a public officer or employee and his or her spouse:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest . . . . [Fla. Stat. s. 112.313(3)(1975).]

UNAUTHORIZED COMPENSATION. -- No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity. [Fla. Stat. s. 112.313(4)(1975).]

Within the facts you have presented, neither of these subsections addresses your question. Accordingly, we find that there is no prohibited conflict of interest where the spouse of a member of the board of fire commissioners of the subject fire district is employed by the district as a lieutenant.

However, from time to time situations may arise in which the board of fire commissioners will consider a measure in which the subject commissioner has "a personal, private, or professional interest" which inures to her "special private gain." Fla. Stat. s. 112.3143 (1975). An example of such situation would be the board's voting on the salaries of the district's lieutenants. In that case, as in all cases of voting conflict, the subject commissioner may abstain from voting. Alternatively, she may elect to vote and file a Memorandum of Voting Conflict, CE Form 4 (copy enclosed), with the person recording the minutes of the meeting at which the vote occurred.

Additionally, we wish to point out that this commission has authority to issue advisory opinions only on the application and interpretation of the Code of Ethics as contained in part III, Ch. 112, F. S. We have no authority to consider the possible applicability of other provisions of the Florida Statutes, for example, Florida Statute s. 116.111, the anti-nepotism law.