CEO 77-93 -- July 21, 1977

CONFLICT OF INTEREST

TOWN COUNCILMAN SERVING AS POLICE CHIEF OF TOWN

To: (Name withheld at the person's request.)

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(10), F. S. 1975, prohibits an employee of a political subdivision from holding office as a member of the governing board which is his employer while continuing as an employee of such employer. Although the intent of this provision is to prohibit a public officer from holding a position which is subject to the supervision of his office, the provision is not violated where a city councilman also serves as chief of police, because the latter position constitutes that of an officer rather than employee. See AGO 072-348 and Curry v. Hammond, 16 So.2d 523 (Fla. 1944). However, this opinion does not address the application of the dual officeholding prohibition of s. 5, Art. II, of the Florida Constitution or of any common law doctrine to the effect that a public body may not appoint one of its own members to a remunerative position. Nor does it address the question of whether a violation of the dual officeholding provision of the Constitution constitutes a "breach of public trust" under s. 8, Art. II, State Const.

QUESTION:

Does a prohibited conflict of interest under the Code of Ethics for Public Officers and Employees exist where the chief of police of a town who has held that position continuously since 1968 has also served as town councilman since 1968, having been reelected to that position in 1972 and in 1976?

This question is answered in the negative.

In your letter of inquiry you have stated that you are the Vice Mayor and a member of the Town Council of the Town of Medley. You have also stated that you are requesting this advisory opinion in behalf of Mayor (and Councilman) Chaffin, Councilman Cook, Councilman Hart, and yourself, who constitute four of the five members of the Town Council, concerning the propriety of fellow Councilman Tobie Wilson's holding the position of Chief of Police of the Town of Medley. Section 5 of the Medley Town Charter, a copy of which you have forwarded to us, establishes that the council has the power to appoint and remove personnel.

Mr. Wilson, you have advised, was first elected councilman on April 2, 1968. He was sworn in as a councilman and policeman on April 8, 1968, and was appointed chief of police in June or July of 1968. Since that time he has been reelected as councilman in April of 1972 and again in April of 1976; he has held the position of chief of police continuously since 1968.

The Code of Ethics for Public Officers and Employees, as contained in part III, Ch. 112, F. S., provides in relevant part as follows:

EMPLOYEES HOLDING OFFICE. --(a) No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his employer while, at the same time, continuing as an employee of such employer.

(b) The provisions of this subsection shall not apply to any person holding office in violation of such provisions on the effective date of this act. However, such a person shall surrender his conflicting employment prior to seeking reelection or accepting reappointment to office. [Section 112.313(10), F. S. 1975.]

Paragraph (a) of this provision prohibits an employee of a municipality from holding office as a member of the governing council which is his employer while at the same time continuing as an employee of such employer. Paragraph (b) constitutes a "grandfather clause," allowing a person who on October 1, 1975, held office in violation of paragraph (a) to finish his term of office, but requiring him to surrender his employment before seeking reelection. Should we find that s. 112.313(10)(a) applies to the subject councilman's situation, he would have been "grandfathered in" under the terms of paragraph (b) -- but only until he sought reelection in April of 1976, at which time he would have had to surrender his employment.

Although the intent of s. 112.313(10) is to prohibit a public officer from holding a position which is subject to the supervision of his office, in our view the subject councilman has not violated that section because, in his position as chief of police, he is an officer of the town rather than an employee. That section, by its terms, applies only to an employee of a municipality. The term "public officer" is defined in the Code of Ethics to include "any person elected or appointed to hold office in any agency." Section 112.313(1), F. S. 1975. A municipal chief of police holds an office in his municipality, primarily because his arrest powers are part of the sovereign powers of government. This view is in accordance with AGO 072-348, in which the Attorney General opined that a city chief of police is a municipal officer, and with Curry v. Hammond, 16 So.2d 523 (Fla. 1944), in which the Supreme Court of Florida held that a city police department patrolman was an officer of the city.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit a municipal chief of police from serving on that municipality's governing council. Please note, however, that this opinion does not address the application of the dual officeholding prohibition of s. 5, Art. II, State Const., or of any common law doctrine to the effect that a public body may not appoint one of its own members to a remunerative position. Nor does this opinion address the question of whether a violation of the dual officeholding provision of the Constitution constitutes a "breach of public trust" under s. 8, Art. II, State Const.