CEO 75-17 -- February 5, 1975

CONFLICT OF INTEREST

POSITIONS AS CITY COUNCILMAN AND ATTORNEY

To: Harry M. Rosen, City Councilman, Miramar

Prepared by: Patricia Butler

SUMMARY:

The Code of Ethics for Public Officers prohibits a public officer from accepting employment with any business entity doing business with or subject to the regulation of his agency [s. 112.313(5), F. S. (1974 Supp.)]. Mr. Rosen is both a councilman of the City of Miramar and an attorney for a sanitation firm seeking renewal of a franchise agreement from the city council. However, Mr. Rosen is not a stockholder, officer, or director in the sanitation firm; nor will he represent the firm in the matter before the council. Further, according to guidelines set forth in 41 Am. Jur.2d Independent Contractors s. 1, 1968, Mr. Rosen's relationship with the corporation is not that of an employee but of an independent contractor. Mr. Rosen is therefore not in violation of the conflict of interest provision in this specific situation. Whether or not he votes as a councilman on the franchise renewal is a matter left by the law [s. 112.314(2), F. S.] to his own conscience. Should conflict of interest exist, disclosure must be made on CE Form 4, Disclosure of conflict of interest in Voting Situations.

QUESTIONS:

1. Is there a conflict of interest in my position as a city councilman and as an attorney who occasionally handles legal matters for All Florida Sanitation, Inc., which is seeking a renewal of a franchise agreement from the city council?

2. Must I, as a city councilman, abstain from voting on the issue of renewing AFS, Inc.'s franchise since I have previously performed legal services for the corporation?

Question 1 is answered in the negative.

In your letter of inquiry you stated that All Florida Sanitation, Inc. (hereinafter AFS, Inc.) is seeking a renewal of a franchise agreement from the city council. You also state that you have handled several small legal matters for this corporation and its stockholders. You are not an officer, director, or stockholder in AFS, Inc., and you are not representing the corporation in the matter before the city council.

The applicable portion of the Code of Ethics for Public Officers and Employees states in part:

No public officer or employee of an agency shall accept other employment with any business entity subject to the regulation of, or doing business with, an agency of which he is an officer or employee nor shall an officer or employee of an agency accept other employment that will create a conflict between his private interests and the performance of his public duties, or will impede the full and faithful discharge of his public duties. [Section 112.313(5), F. S., as amended by Ch. 74- 177, Laws of Florida; emphasis supplied.]

In this section, the term "employment" is crucial. It is our opinion that your relationship with AFS, Inc. is that of an independent contractor rather than an employee. The definition of an independent contractor is generally stated as: "One who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the product or result of his work." 41 Am. Jur.2d Independent Contractors s. 1, 1968. The two elements which distinguish an independent contractor from an employee are: The contractor has an independent business or occupation and the contractor is not subject to the control of the employer as to manner or detail of performance of the contracted work. See CEO 74-6.

Clearly, you meet the two conditions set out above for an independent contractor. As such, you are not in the "employ" of AFS, Inc. Accordingly, in this specific instance, you do not come within the prohibitions of s. 112.312(5), F. S. It is our opinion that working as an independent contractor for a corporation which is seeking a franchise renewal before the city council of which you are a member presents no prohibited conflict of interest on your part.

Question 2 is also answered in the negative.

As stated in the previous question, there is no prohibited conflict of interest presented in this specific situation. It should be noted that the existence of a conflict of interest does not require abstention on the part of the public officer who is involved. See s. 112.314(2), F. S. Whether or not the officer abstains from voting is a question left entirely to the officer's own discretion. However, when a conflict exists, it must be fully explained on CE Form 4, Disclosure of Conflicts of Interest in Voting Situations, which must be filed with the body on which an officer serves and with the Ethics Commission.