CEO 78-20 -- April 20, 1978
CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST
SCHOOL BOARD VOTING TO RETAIN SERVICES OF ARCHITECT WHO IS FRIEND OF AND CAMPAIGN CONTRIBUTOR TO SCHOOL BOARD MEMBER OR TO RETAIN SERVICES OF ENGINEERING FIRM, A SUBSIDIARY OF WHICH IS MANAGING LIQUIDATION OF MEMBER'S PARTNERSHIP
To:(Name withheld at the person's request.)
Prepared by:Phil Claypool
SUMMARY:
A public officer or candidate is prohibited from accepting anything of value, including a campaign contribution, which is based on the understanding that his official action would be influenced thereby. Section 112.313(2)(b), F. S. 1977. Where a school board contemplates retention of the services of an architect who is a personal friend of and campaign contributor to a member of the board, no prohibited conflict of interest is created as there is no indication that the architect made such contribution with any intent to influence the board member's official action. Neither is there a voting conflict of interest under s. 112.3143 as the measure does not inure to the board member's special private gain or the special gain of any principal by whom he is retained.
Under s. 112.313(7)(a) relating to conflicting employment or contractual relationships, there would be no prohibited conflict of interest created were a school board to retain the services of an engineering firm where a wholly owned subsidiary of that firm is managing the dissolution of a partnership in which a board member is a partner. Each corporation in this state constitutes a separate "business entity" as that term is defined in s. 112.312(3), and the board member therefore would not have a contractual relationship with a business entity doing business with his agency but rather with a subsidiary of that business entity. There would be no voting conflict requiring disclosure in this matter because there would be no special private gain on the part of the board member or a principal who retains him.
QUESTIONS:
1. Would a prohibited conflict of interest be created were the school board of which I am a member to retain the services of an architect who is a personal friend of mine and who contributed to my election campaign?
2. Would a voting conflict of interest be created were I to vote for the school board to retain the services of an architect who is a personal friend of mine and who contributed to my campaign?
3. Would a prohibited conflict of interest be created were the school board of which I am a member to retain the services of an engineering firm when a wholly owned subsidiary of that firm is managing the dissolution of a partnership in which I was a partner?
4. Would a voting conflict of interest be created were I to vote for the school board to retain the services of an engineering firm when a wholly owned subsidiary of that firm is managing the dissolution of a partnership in which I was a partner?
In your letter of inquiry you advise that you are a member of the ____ County School Board and that the school board will vote to select a firm to do a feasibility study regarding the construction and financing of a new central administration building for the school system. You also advise that one of the applicants is an architect who is a personal friend and whose family contributed to your election campaign.
Because the Code of Ethics for Public Officers and Employees generally is intended to limit certain of a public officer's economic interests, it has no provision which would restrict the officer from having personal friends who are doing business with his agency. However, there is a provision of the Code of Ethics which we feel does relate to the solicitation or acceptance of campaign contributions. That section provides:
SOLICITATION OR ACCEPTANCE OF GIFTS. -- No public officer or employee of an agency or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service:
That is based upon any understanding that the vote, official action, or judgment of the public officer, employee, or candidate would be influenced thereby. [Section 112.313(2)(b), F. S. 1977.]
Thus, a public officer or candidate is prohibited from accepting a campaign contribution (a thing of value to him) which is based on the understanding that his official action would be influenced. You have provided us with no information which would indicate that this applicant made a contribution to your campaign in order to influence your vote in this matter or with the understanding that your vote in this matter would be favorable to him. Accordingly, absent such intent and understanding, we find that no prohibited conflict of interest would be created were the school board to retain the services of an architect who is a personal friend of yours and who contributed to your election campaign.
Question 2 is answered in the negative.
Section 112.3143, F. S. 1977, provides:
Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.
While you may be said to have a personal interest in regard to a measure which would result in a personal friend's being retained by your agency, it is apparent that the measure would not inure to your special private gain or the special gain of any principal by whom you are retained. Accordingly, we find that you would not have a voting conflict of interest requiring disclosure were you to vote for the school board to retain the services of an architect who is a personal friend and who contributed to your campaign.
Question 3 is answered in the negative.
In your letter of inquiry you advise that another of the applicants to provide a feasibility study for the school board is an engineering firm. You also advise that the management corporation which is managing the liquidation of a limited partnership in which you were a limited partner is a wholly owned subsidiary of that engineering firm. While you have provided information showing that you do not owe any money to the management corporation, it is our understanding that the liquidation of your limited partnership has not yet been completed.
The Code of Ethics 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 . . . . [Section 112.313(7)(a), F. S. 1977.]
This provision prohibits a public officer from having a contractual relationship with a business entity which is doing business with his agency. The term "business entity" is defined to mean
any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state. [Section 112.312(3), F. S. 1977.]
As each corporation in this state constitutes a separate business entity under this definition, for purposes of the Code of Ethics, we perceive a distinction between the engineering firm and its wholly owned subsidiary, the management company. Thus, the management company with which you do have a contractual relationship is not the business entity which would be doing business with the school board if the board were to retain the services of the engineering firm.
Accordingly, we find that no prohibited conflict of interest would be created were the school board to retain the services of an engineering firm when a wholly owned subsidiary of that firm is managing the dissolution of a partnership in which you were a partner.
Question 4 also is answered in the negative.
Section 112.3143, quoted above in response to your second question, requires a public officer to disclose a voting conflict only if he votes upon a measure which inures "to his special private gain or the special gain of any principal by whom he is retained." A measure authorizing the school board to retain the services of the engineering firm clearly would not inure to your special private gain. Nor would it inure to the gain of any principal by whom you are retained, first because you are not retained by the engineering firm, and secondly because even if the measure could be said to inure to the gain of the management company, that company has been retained as agent by you rather than vice-versa.
Accordingly, we find that no voting conflict of interest would be created were you to vote for the school board to retain the services of an engineering firm when a wholly owned subsidiary of that firm is managing the dissolution of a partnership in which you were a partner.