CEO 78-16 -- March 15, 1978

CONFLICT OF INTEREST

REGIONAL TRANSPORTATION BOARD MEMBER PURCHASING ADVERTISING SPACE ON OUTSIDE OF MASS TRANSIT BUSES

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(7)(a), F. S. 1977, prohibits a public officer from having a contractual relationship with an agency which is subject to the regulation of his agency. Where a county is subject to the regulation of a regional transportation board insofar as transportation system matters are concerned, a member of that board is prohibited from entering into a contract with the county for the purchase of advertising space on county-owned buses as he would have a contractual relationship with an agency, the county, which is subject to the regulation of his agency, the transportation board, with respect to the terms and conditions of the proposed contract.

QUESTION:

Would a prohibited conflict of interest be created were a member of a regional transportation board to enter into a contract with a county to purchase advertising space on the sides of buses owned by the county but operated under policies set by the transportation board?

Your question is answered in the affirmative.

In your letter of inquiry you advise that the ____ County Regional Transportation Board recently implemented a program to sell advertising space on the outside of mass transit buses to private parties. You also advise that Mr. ____, a member of the ____ City Commission and of the ____ County Regional Transportation Board, wishes to purchase advertising space on the buses.

According to the interlocal agreement between the city and the county which established the regional transportation board, the board is composed of the members of the city and county commissions. While the county owns and operates the transit system for the board, the board sets all policies for the administration, fares, operation, maintenance, and development of the transit system. Advertisers' contracts are with the county commission.

We note at the outset that the prohibition contained in s. 112.313(3), F. S. 1977, does not apply under the proposed contract because the subject officer will not be selling any goods or services to either of his agencies, the city or the transportation board. However, the Code of Ethics for Public Officers and Employees further 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. 1977.]

This provision prohibits a public officer from having a contractual relationship with an agency which is subject to the regulation of his agency. While the county is not generally subject to the regulation of the transportation board, insofar as transportation system matters are concerned, the county has delegated its regulatory authority to the transportation board through the interlocal agreement which created the board, and the county has agreed "to comply with and abide by all policies as shall be set and determined by such Board . . . ." Interlocal Agreement, s. 1. Thus, were the subject board member to enter into the proposed contract, he would have a contractual relationship with an agency, the county, which is subject to the regulation of his agency, the transportation board, with respect to the terms and conditions of the proposed contract.

We recognize that the proposed contract is not likely to be of great economic benefit to the subject board member. However, we have refused consistently to consider the amount of gain which might be realized by a public officer in determining whether a proposed transaction was prohibited by the Code of Ethics, except insofar as such gain might be exempted under s. 112.313(12)(f), F. S. 1977. See, for example, CEO's 76-187, 76-204, and 77-177. Accordingly, we find that the Code of Ethics prohibits the subject regional transportation board member from entering into a contract with the county to purchase advertising space on the sides of buses owned by the county and operated under policies set by the transportation board.