CEO 78-12 -- February 16, 1978

CONFLICT OF INTEREST

MEMBERS OF EROSION PREVENTION DISTRICT BOARD EMPLOYED BY DEVELOPMENT WITHIN THE DISTRICT

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

Prepared by: Phil Claypool

SUMMARY:

A public officer is prohibited by s. 112.313(7)(a), F. S. 1975 from having any employment or contractual relationship with a business entity which is doing business with his public agency. Therefore, a member of an erosion prevention district board appears to be precluded from holding employment with a development which does business with the district through donating funds for the construction of a land groin, pursuant to an erosion control plan, which would be of direct benefit to the development. However, s. 112.316 further provides that it is not the intent of the Code of Ethics to prevent a public officer or employee from following any private pursuit which does not interfere with the full and faithful discharge of his public duty. As the board member's private employment does not in any way relate to the approval of or the giving of advice or recommendations as to the development's dealings with the erosion district, and as the groin protecting the development will be financed totally by the development at no detriment to other landowners in the district, such private employment is not deemed to interfere with the board member's public duty and therefore does not violate the Code of Ethics.

Section 112.313(7)(a) has no application where the private employment or contractual relationship with a business entity doing business with one's agency took place in the past. See CEO 76-184. Accordingly, no conflict of interest exists where a member of the erosion prevention district board is an architect who was employed by the development in the past but who currently is not doing any work for the development. Neither is a conflict of interest created where another board member privately is an environmentalist retained as a consultant by the development, as he is deemed to be an independent contractor rather than an employee of the development.

QUESTIONS:

1. Does a prohibited conflict of interest exist where a member of an erosion prevention district board is employed by a development within the district which has donated money for a project of the district?

2. Does a prohibited conflict of interest exist where a member of an erosion prevention district board in the past has done work for a development within the district, where the development has donated money for a project of the district?

3. Does a prohibited conflict of interest exist where an environmentalist retained as a consultant by an erosion prevention district board is also employed on a piecemeal work basis by a development within the district which has donated money for a project of the district?

Question 1 is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advise that ____, a member of the ____ Erosion Prevention District Board of Commissioners, is employed as the head of maintenance of the golf course of the ____ Plantation, an exclusive development located on ____ Island. In addition, you advise that the erosion district encompasses all of ____ Island, a narrow island approximately 4-1/2 miles long which recently has experienced substantial erosion. The district has prepared a plan for erosion control on the island, which plan is being implemented on a yearly basis as funds are available. The plan includes the construction of a groin to extend into the Gulf of Mexico at the northern tip of the island, where the ____ Plantation property is located. In order to see that the groin at that end of the island is completed, the plantation has agreed to finance its construction, having donated $150,000 to the district for that purpose since 1976.

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

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.]

This provision prohibits a public officer from having any employment or contractual relationship with a business entity which is doing business with his agency.

In our view, the plantation is doing business with the erosion prevention district. We are aware that the plantation has donated the money to the district and therefore that the two may not have the contractual relationship which is characteristic of most business relationships. However, taking into account the fact that the money has been given for the specific purpose of constructing a groin and that this purpose is of direct benefit to the plantation, and further taking into account the amount of the donation, we are of the opinion that this constitutes a business relationship within the terms of s. 112.313(7)(a), above. In a previous opinion, we have found that a grant of money for specific purposes from a public agency to a business entity constituted a business relationship. See CEO 77-65, a copy of which is enclosed. We are unable to say that the converse of the circumstances of that opinion would not likewise constitute a business relationship.

Therefore, it appears that the subject board member is prohibited from being employed by the development while the development is doing business with the board. However, in construing the Code of Ethics, we must consider also another provision, which states:

Construction. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, F. S. 1975.]

In the present situation, it is apparent that the subject board member's employment does not interfere with the full and faithful discharge of his public duties for two reasons. First, his position as head of maintenance of the development's golf course is not such that his responsibilities include approval of or the giving of advice or recommendations as to the development's dealings with the erosion district. See, for example, CEO's 76-10 and 77-147. Second, you have advised that the groin protecting the development will be financed totally by the development, thus enabling the erosion district's funds to be applied to other projects. This fact eliminates the possibility that the subject board member could be directly or indirectly coerced to benefit his employer to the detriment of the other landowners on the island, for example by setting priorities for the construction of district projects.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit the subject erosion district board member from being employed by a development within the district which has donated money for a project of the district.

Question 2 is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advise that ____, a member of the ____ Erosion Prevention District Board, is an architect who was employed by ____ Plantation in the past to design a bathhouse, but who currently is not doing any work for the development.

Section 112.313(7)(a), quoted above in our answer to your first question, has no application where the employment or contractual relationship with a business entity doing business with one's agency was in the past. See CEO 76-184.

Accordingly, we find that a prohibited conflict of interest does not exist where the subject district board member has done work for a development within the district in the past where the development has donated money for a project of the district.

Question 3 is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advise that ____ is an environmentalist with an independent firm who has been hired as a consulting engineer for the district and who has been working on a piecemeal work basis over the last year for the ____ Plantation. We find that the subject consultant is an independent contractor with the district rather than a public employee, and that therefore he is not subject to the provisions of the Code of Ethics.

In past opinions we have applied a two-part test to determine whether one is an independent contractor or a public employee. In order to constitute an independent contractor, the person must have an independent business or occupation; and he must not be subject to the control of his employer as to the manner or detail of performance of the work. See CEO 77-25. It is apparent that the subject consultant meets both of these requirements of an independent contractor and therefore is not subject to provisions of the Code of Ethics for Public Officers and Employees.