CEO 79-50 -- September 6, 1979

CONFLICT OF INTEREST

CITY CIVIL SERVICE BOARD MEMBER SERVING AS PRESIDENT OF COLLECTIVE BARGAINING UNIT

To: Mr. Ralph T. White, Hollywood

Prepared by: Phil Claypool

SUMMARY:

A municipal employee who serves on that municipality's Civil Service Board while also serving as president of a collective bargaining unit of city employees has a contractual relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties and which impedes the full and faithful discharge of his public duties, in violation of s. 112.313(7)(a), F. S., of the Code of Ethics. It is contemplated by the current employee organization agreement that some city employees will have grievances which could be remedied either by the Civil Service Board, of which the employee is a member, or by the grievance procedures of the agreement, in which the employee is involved as president of the union local. In such cases, he would be presented with a conflict of interest in advising an employee which procedure to follow and in assisting him through the processing of his grievance. The subject employee's knowledge and responsibilities as president of the union local place him in a unique position which would impede the full and faithful discharge of his duties as the employee-elected member of the Civil Service Board.

QUESTION:

Does a prohibited conflict of interest exist when a municipal employee who serves on the municipality's Civil Service Board also serves as president of a collective bargaining unit within the city?

Your question is answered in the affirmative.

In your letter of inquiry you advise that currently you are employed by the City of Hollywood as a zoning administrator and that approximately a year ago you became an employee-elected member of the Hollywood Civil Service Board. You also advise that the Civil Service Board consists of seven voting members, four of whom are nonemployees of the city who are appointed by the city commission. The remaining three members are city employees elected one each from the fire department, the police department, and the general employees. The Civil Service Board, you advise, acts as an appellate review board for employees in the classified service of the city who appeal termination, demotion, suspension, testing, or promotion and placement procedures.

You further advise that in January of 1979 you were elected president of a collective bargaining unit which contracts with the City of Hollywood. All offices of this local, you advise, are nonpaid positions held by general employees or retirees. You state that your current duties with the local have involved the processing of employee grievances that cannot be heard by the Civil Service Board. In this respect, you note that the current employee organization agreement between the city and the local provides in part:

An Employee who has rights under this grievance procedure shall have the option of utilizing this grievance procedure or, if available to the Employee, the Civil Service appeal procedure, but such Employee cannot use both the grievance procedure and the Civil Service appeal.

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, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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.]

For the sake of clarity, we note that your question is not whether a municipal employee may serve on that municipality's Civil Service Board, nor is your question whether a municipal employee may serve as an officer of a collective bargaining unit composed of municipal employees, a situation which is expressly permitted by the above-quoted section. Instead, your question relates to the propriety of a municipal employee's serving on a Civil Service Board while also serving as president of a collective bargaining unit of city employees.

Section 112.313(7)(a), above, prohibits you from having any employment or contractual relationship with a business entity which is subject to the regulation of or which is doing business with your agency. As a member of the Civil Service Board, that board would be your "agency." See s. 112.312(2), F. S., defining the term "agency" for purposes of the Code of Ethics. As an officer of a collective bargaining organization, we are of the opinion that you have employment or a contractual relationship with that organization for the purposes of s. 112.313(7)(a). In a previous advisory opinion, CEO 77-145, we advised that a noncompensated negotiator for a collective bargaining organization did not have an employment or contractual relationship with that organization. However, the language of s. 112.313(7)(a) strongly implies that the Legislature was of the opinion that an officer of a collective bargaining organization would have an employment or contractual relationship with that organization. The provision excludes from its application "those organizations and their officers who . . . enter into or negotiate a collective bargaining contract with the state or any municipality . . . ." It is apparent that the Legislature was of the opinion that, without this exclusion, s. 112.313(7)(a) would preclude a municipal employee from acting as an officer of a collective bargaining organization on the basis of his employment or contractual relationship with that organization. We cannot ignore this plain legislative intent.

Under the circumstances you have presented, it does not appear that the collective bargaining organization of which you are president is either doing business with or is subject to the regulation of this Civil Service Board. However, we find that your employment or contractual relationship as an officer of the collective bargaining organization would impede the full and faithful discharge of your public duties as a member of the Civil Service Board and would create a frequently recurring conflict between your interest as president of the organization and the performance of your duties as a Civil Service Board member. It is contemplated by the current employee organization agreement that some city employees will have grievances which could be remedied either by the Civil Service Board, of which you are a member, or by the grievance procedures of the agreement, in which you are involved as president of the local. In such cases, you would be presented with a conflict of interest in advising the employee as to which procedure to follow and in assisting him through the processing of his grievance. Your knowledge and responsibilities as president of the union local place you in a unique position which would impede the full and faithful discharge of your responsibilities as the employee-elected member of the Civil Service Board.

Accordingly, we find that a prohibited conflict of interest does exist when you serve on the Hollywood Civil Service Board while serving as president of the collective bargaining organization.