CEO 76-91 -- May 17, 1976

CONFLICT OF INTEREST

CITY COMMISSIONER DOING BUSINESS WITH CITY

To: Peter Haddad, City Attorney, Oak Hill

Prepared by: Gene Rhodes

SUMMARY:

Pursuant to Florida Statute s. 112.313(3)(1975), a prohibited conflict of interest exists where a municipality has repair work performed on police vehicles at a local garage which is owned by a city commissioner. See CEO 76-31. An oral agreement to repair which existed prior to the effective date of the law cannot be considered a contract for purposes of the grandfather clause of the above-cited provision because such contract contains no specified terms and must be renegotiated periodically. Consequently, the intent of the grandfather clause, to exempt from the provisions of the section those contracts which were entered into at a time when the subject public officer was not in a position to take advantage of his public position, would not be served. The fact that the city commissioner serves without pay has no bearing on the issue inasmuch as the definition of the term "public officer" does not take into consideration compensation or lack thereof. Nor does the practical necessity of the city's doing business within the city limits to save a 30-mile round trip alter the outcome. The Code of Ethics is specific in this prohibition, and similar hardships have been imposed on other municipalities.

QUESTIONS:

1. Does a prohibited conflict of interest exist where a city commissioner performs all of the necessary work on the city's police vehicles?

2. Does the oral contract for the repair of police vehicles which was entered into prior to October 1, 1975, and prior to the subject city commissioner's qualification for elective office constitute an exception to Fla. Stat. s. 112.313(3)(1975) pursuant to s. 112.313(3)(a) and (b)?

3. Would the answer to either question 1 or question 2 above be changed were the subject city commissioner to serve without pay?

4. Would the practical necessity of doing business within the city limits to save a 30-mile round trip change the answer to question 1 or question 2?

Question 1 is answered in the affirmative.

You have advised us that the subject city commissioner owns one of two motor vehicle repair garages within the city limits. The city commissioner's garage is capable of performing certain repairs that the other garage cannot perform. Your letter of inquiry advises us that the nearest garage outside the city limits which can perform these repairs is located approximately 15 miles away. Prior to being elected to the city commission, the subject commissioner repaired the police vehicles pursuant to an oral contract with the police chief to make repairs when necessary. The commissioner never dealt directly with the city commission.

Please find enclosed a copy of CEO 76-31, the rationale of which is equally applicable to your inquiry.

Question 2 is answered in the negative.

Your letter of inquiry advises us that the arrangement between the city commissioner and the City of Oak Hill "was strictly an oral contract to repair when necessary." You subsequently informed our staff by telephone that the terms of each repair are negotiated individually. The portion of s. 112.313(3) to which you refer states:

This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office . . . .

[Fla. Stat. s. 112.313(3)(1975).]

The above-quoted provision exempts from the prohibition of s. 112.313(3) those contracts entered into prior to October 1, 1975, or prior to the date one qualified for elective office. The exemption would seem to apply in this case; but we believe that in enacting the above-quoted exemption, the Florida Legislature intended to exempt from the provisions of s. 112.313(3) those contracts which were entered into at a time when the subject public officer or employee was not in a position to take advantage of his public position (i.e., before he became a public officer or employee). This assumed purpose is not served by including in the exemption either contracts which do not state specified terms and therefore must be negotiated at various times after the making of the contract or contracts which do have specified terms and therefore must be renegotiated periodically. The fact that the terms must be negotiated or renegotiated after one assumes a public position creates a situation which was meant to be prohibited by s. 112.313(3).

Moreover, an enforceable contract does not exist between the city councilman and the city. The Florida Statutes require that any agreement that is not to be performed within the space of 1 year from the time of making be in writing and signed by the party to be charged. If this provision is not complied with, the contract is not enforceable. See Fla. Stat. s. 725.01(1975). In our view the term "contract" as used in s. 112.313(3) means an enforceable contract by definition. "A contract is a promise or set of promises to do or not to do a particular act or particular acts, which is binding in law, that is, legally enforceable." [Emphasis supplied.] 5 Fla. Law and Practice Contracts s. 2 (1956). Therefore the contract which you describe in your letter of inquiry is not a contract for these purposes.

Please note that, even if the exemptions found in s. 112.313(3) were applied in this case, the situation you describe would still be prohibited under s. 112.313(7).

Question 3 is answered in the negative.

Florida Statute s. 112.313(1)(1975) defines the term "public officer" to include "any person elected or appointed to hold office in any agency, including any person serving on an advisory body." This definition does not consider compensation or lack thereof. Your question is answered accordingly in the negative.

Question 4 is answered in the negative.

In answering question 1 we took into account the fact that the application of s. 112.313(3) and (7) would impose a hardship on the city. The Code of Ethics is clear on this point, and we have previously felt compelled to impose similar hardships on other municipalities. Please see CEO's 76-31 and 76-15. Given the clear language of s. 112.313(3) and (7), we must find consistently with the above cited opinions. This question is answered accordingly in the negative.