CEO 79-75 -- November 16, 1979

CONFLICT OF INTEREST

CITY MAYOR RECEIVING PER DIEM AND ALLOWANCES WHILE ACTING AS TEMPORARY CITY ADMINISTRATOR

To: Joe W. Love, Mayor, Green Cove Springs

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(10)(a), F. S., prohibits a member of the governing body of a city from being employed by that city, and subsection (3) prohibits a public officer from selling services to his public agency. However, when a mayor is serving temporarily and without pay as city administrator, due to the demise of the city manager, such mayor is not deemed to be "employed" by the city. His receipt of per diem and travel allowances in connection with performing administrative functions is not deemed to be compensation of an employment nature. Therefore, no prohibited conflict of interest is created when a city mayor receives per diem and travel allowances authorized by city ordinance while acting as temporary city administrator.

QUESTION:

Would a prohibited conflict of interest be created were I, a city mayor, to receive per diem and travel allowances while acting as temporary city administrator?

Your question is answered in the negative.

In your letter of inquiry you advise that, since the death of the City Manager of the City of Green Cove Springs, you have been serving as administrator of the city without pay while on a leave of absence from your private job. You further advise that the city has begun advertising for a new city manager but that it does not appear that the position will be filled in the near future. You question whether it would be possible for you to receive per diem and travel allowances pursuant to city ordinance 0-14-78 while serving as administrator for the city, even though you presently serve the city as mayor and commissioner. This ordinance authorizes the reimbursement of authorized traveling and subsistence expenses while traveling on official business for the city. No allowance is made for meals or per diem when travel is confined to the city or immediate vicinity.

Section 2-13 of the Green Cove Springs Code creates "the office of the City Manager for the City of Green Cove Springs." Other sections of the city code specify that the city manager is appointed by the city commission as the administrative head of the municipal government. Section 2-15 provides:

During the absence or disability of the city manager, the city commission may designate some qualified person to temporarily execute the functions of the office.

The Code of Ethics for Public Officers and Employees provides:

EMPLOYEES HOLDING OFFICE. -- 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. [Section 112.313(10)(a), F. S.]

This provision prohibits a member of the governing body of a city from being employed by the city. However, it does not appear that you would be an employee of the city while temporarily executing the functions of the office of the city manager on a nonsalaried basis. As the city manager is an officer of the city, your temporary execution of those responsibilities would indicate that you would hold a position more in the nature of an officer than that of an employee of the city. See CEO 77-93, in which we found that the above-quoted provision of the Code of Ethics would not be violated when a town council member also serves as police chief of the town. Nor does it appear that, by receiving per diem and travel allowances, for example, you would be receiving "compensation" that would make you an employee of the city.

The Code of Ethics also prohibits a public officer from selling services to his public agency. Section 112.313(3), F. S. However, we are of the opinion that this provision also would not be violated by your temporary service in the administration of the city. As you would be entitled under the Code of Ethics to perform the functions of the city manager temporarily, we do not believe that you would be barred from receiving such per diem and travel allowances as might be lawfully authorized to one in that position.

Accordingly, we find that no prohibited conflict of interest would be created were you to receive per diem and travel allowances authorized by city ordinance while acting as temporary city administrator, despite your position as mayor of the city. 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. For an advisory opinion on these issues, you will have to contact the Attorney General, as this commission has no jurisdiction to address them.