CEO 77-11 -- February 1, 1977

CONFLICT OF INTEREST

MAYOR SERVING AS EMPLOYEE IN CITY FIRE DEPARTMENT

To: Allison E. Folds, Waldo City Attorney, Gainesville

Prepared by: Bonnie Johnson

SUMMARY:

A prohibited conflict of interest is created where an elected mayor of a municipality is employed within that city as the designated fire and rescue employee. Although said employee is compensated by the county pursuant to an interlocal agreement, he would be subject to the supervision of the municipal fire chief who, in turn, is employed and supervised by the subject mayor, the chief administrative officer of the city. He therefore would hold employment with an agency, the fire department, subject to the regulation of his public agency in violation of s. 112.313(7)(a), F. S. 1975.

QUESTION:

Does a prohibited conflict of interest exist where an elected mayor of a municipality is employed within that city as the designated fire and rescue employee, pursuant to the terms of an interlocal agreement between the city and the county within which it is located?

Your question is answered in the affirmative.

You advise in your letter of inquiry that the recently elected Mayor of the City of Waldo is employed within that city as fire protection and rescue employee under the terms of an interlocal agreement between the city and Alachua County dated October 18, 1974, for the purpose of fire protection and emergency medical first aid and rescue service in that area of the county. Section 6 of that agreement provides for the filling of said position as follows:

Section 6: Fire Protection and Rescue Employee

In order to increase the efficiency of the fire protection and rescue operations, the parties hereby agree that a full-time fire rescue employee shall be hired.

(a) The employee shall fulfill all of the qualifications for the position which have been or in the future shall be promulgated by the Alachua County Firefighters Association and filed with County.

(b) The employee shall be hired and discharged by County at the discretion of [the City] Fire Department.

(d) The employee shall be placed on County's payroll, shall be entitled to all benefits accorded to other County employees, and shall be subject to County's pay plan and personnel regulations as they presently exist or are hereafter amended.

The Code of Ethics for Public Officers and Employees provides in relevant part 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. [Section 112.313(7)(a), F. S. 1975.]

A public officer thus is prohibited from having employment or a contractual relationship with an agency subject to the regulation of or doing business with his public agency, or which creates a continuing or recurrent conflict with his public duties.

The above-quoted provision of the interlocal agreement clearly states that the position of fire protection and rescue employee is within the county personnel and pay plans. The actual hiring of an individual to fill the position, however, is not entirely clear within the terms of the agreement.

In a letter dated December 28, 1976, you advise that upon speaking with Ms. Pat Jamerson, Director of Emergency Services, Alachua County, you ascertained that the local fire chief submits to Ms. Jamerson his recommendation for the person to fill the position of fire protection and rescue employee. The qualifications for said position are promulgated by the Alachua County Firefighters Association, and if the individual recommended by the local fire chief meets those training qualifications, he is hired by the county to fill the city position.

You further advise in your most recent correspondence that s. 4, Art. III, of the city's charter provides as follows:

. . . the Mayor shall have general supervision over all municipal affairs and municipal officers except the members of the City Council, and may examine into the condition of their offices, books, records and papers thereof and therein and in the manner of conducting their official business. He may call upon any official, clerk or deputy for information in relation to any matter pertaining to his office.

The mayor thus is the chief administrative officer of the city and, as such, supervises the operation of all municipal officers, including the fire chief, other than the city council. Where the mayor is employed as the fire protection and rescue employee of the city, he is in the unusual situation of being recommended for employment and supervised by the fire chief who, in turn, is supervised by the fire protection and rescue employee in his capacity as mayor. We deem this to constitute employment which creates a continuing conflict between private interests and the performance of public duties in violation of s. 112.313(7) quoted above. Too, although it is the county which technically hires the fire protection and rescue employee, in practicality he is supervised by and does work for the city. The mayor thus holds employment with an agency subject to the regulation of his own agency.

We have taken into account your explanation that the fire department is a volunteer organization which essentially acts autonomously, that the fire chief is elected by that organization, and that the mayor has never attempted to exercise control over either the fire chief or the fire department. In reaching our decision, however, we feel compelled to rely on provisions of the city charter and interlocal agreement and accordingly find that a prohibited conflict of interest exists where an elected mayor of a municipality is employed within that city as the designated fire and rescue employee under supervision of the fire chief who, in turn, is subject to supervision by the mayor.