CEO 77-1 -- February 1, 1977

CONFLICT OF INTEREST

MEMBER OF BOARD OF CITY PARKS AND RECREATION DEPARTMENT OWNING MATERIAL INTEREST IN COMPANY WHICH SELLS TO PRIVATE ASSOCIATION WHICH LEASES CONCESSION STAND FROM CITY

To: G. R. McClelland, City Attorney, Largo

Prepared by: Phil Claypool

SUMMARY:

No conflict of interest is created where a member of a municipal parks and recreation department board is a member of a private organization which leases a concession stand from the city, where the board member owns a material interest in a business which sells goods to the association to run the concession stand. The Code of Ethics prohibits a public officer from having employment or a contractual relationship with a business entity which does business with his public agency. Section 112.313(7)(a), F. S. 1975. However, the subject board member does not have employment or a contractual relationship with either the organization or the business entity. Section 112.313 further prohibits a public officer acting in his official capacity from directly or indirectly purchasing goods for his agency from a business entity in which he owns a material interest. As the parks and recreation department does not purchase goods from the business entity, however, neither is this provision violated.

QUESTION:

Does a prohibited conflict of interest exist where a member of the board of a city parks and recreation department is a member of a private organization which has leased a concession stand from the city and where that board member owns a material interest in a business which sells goods to the private association to run the concession stand?

Your question is answered in the negative.

You have stated in your request that Mrs. Fairley has been appointed as a member of the Board of the City of Largo Parks and Recreation Department by the City Commission of the City of Largo pursuant to Ch. 16 of the City Code. She is also a member of the Largo Lightning Swim Club, a private organization composed of parents of swimmers, which sponsors swimming activities through the parks and recreation department. The swim club has a short-term written agreement with the city under which the city leases a concession stand to the swim club in return for a specified portion of the proceeds. The subject board member owns half of the stock of a corporation which sells the supplies to the swim club which supplies in turn are sold by the swim club at the concession stand.

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

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. --(a) 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. [Section 112.313(7)(a), F. S. 1975.]

This provision prohibits a public officer from having an employment or contractual relationship with a business entity which is doing business with her agency and from having an employment or contractual relationship that would create a frequently recurring conflict between her private interests and her public duties. The subject board member is an appointed public officer [s. 112.313(1)], and her agency is the city parks and recreation department [s. 112.313(2)]. However, she does not have an employment or contractual relationship with either the swim club or with her corporation. Consequently, s. 112.313(7)(a) does not prohibit her from engaging in the above- mentioned activities.

The Code of Ethics also provides as follows:

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. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. . . . [Section 112.313(3), F. S. 1975.]

This provision prohibits a public officer acting in her official capacity from directly or indirectly purchasing goods for her agency from a business entity in which she owns a material interest. We consider a public officer to be acting in her official capacity whenever the board of which she is a member takes an official action. See CEO 75-201. The subject board member owns a "material interest" in the corporation which is selling goods to the swim club as that term is defined by s. 112.312(11), F. S. (1976 Supp.). As the city parks and recreation department is not directly purchasing goods from the corporation, and as we find that the parks and recreation department is not indirectly purchasing goods from the corporation, there is no conflict prohibited by the first sentence of this provision. The second sentence of the above-cited provision prohibits an officer of a city from acting in her private capacity to sell any goods to the city or to any agency of the city. This provision does not apply to the present situation because the swim club, to which the corporation sells, is a private organization rather than an agency of the city.

Accordingly, we find that there is no prohibited conflict of interest where a member of the board of the city parks and recreation department is a member of a private organization which has leased a concession stand from the city and where she owns a material interest in a business which sells goods to that private organization to run the concession stand.