CEO 80-13 -- February 21, 1980

CONFLICT OF INTEREST

COUNTY COMMISSIONER OWNER OF TRAVEL AGENCY BOOKING RESERVATIONS FOR COUNTY EMPLOYEES

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

Prepared by: Phil Claypool

SUMMARY:

No prohibited conflict of interest would be created were a county commissioner of a charter county, in which the county administrator is responsible for the appointment, suspension, and removal of county employees, to own a travel agency which would book reservations for county employees traveling on official business. Reference is made to prior opinions CEO's 76-175, 78-93, 79-16, and 80-1 relative to the applicability of s. 112.313(3) and (7)(a), F. S., to similar situations. In addition to the rationale expressed in those opinions, ownership of the travel agency in this particular instance does not constitute an employment or contractual relationship which would interfere with the full and faithful discharge of the commissioner's public duties based on the county charter's specifying that the commission has no authority over county employees. Also, the commission itself has enacted a civil service ordinance for personnel administration within county government, with the commission having no function in the appellate process of this system. Accordingly, so long as the petitioner does not actively solicit the travel business of county employees, which potentially would violate s. 112.313(6) relating to misuse of public position, the Code of Ethics does not prohibit his ownership of a travel agency.

QUESTION:

Would a prohibited conflict of interest be created were I, a county commissioner, to own a travel agency which would book reservations for county employees traveling on official business?

Your question is answered in the negative.

In your letter of inquiry you advise that you are a member of the Broward County Commission and that in the near future you will become half owner of a travel agency located in the county. As it is not your intention to solicit any potential business with the county, you advise, your concern is whether a conflict of interest would exist if the travel agency were to book travel reservations for county employees who are traveling on official business.

In this regard, you advise that the county provides its employees only two methods by which they can arrange for travel while on official business. The first, which is the preferred method, is through the use of a flight check system, whereby the employee makes arrangements for his travel schedule and then requests that a flight check be issued to him from the county. Flight checks are used in place of tickets and are obtained by the county in blank form from the airlines. Thus, it is your understanding that a travel agency would have no involvement in this method of travel.

The second method of travel, you advise, is for the employee to obtain approval of a travel request, book his own airline reservations and pay for them with personal funds, and receive reimbursement later from the county. You advise that the county does not issue air travel cards for employees' travel.

The Code of Ethics for Public Officers and Employees provides:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), F. S.]

This provision prohibits a public officer from owning more than 5 percent of a business entity which is selling its services to his agency. As a county commissioner, your "agency" is the county. See s. 112.312(2), F. S., defining the term "agency." Section 112.313(3), above, accordingly prohibits you from owning more than 5 percent of a travel agency which sells its services to the county.

However, in a previous advisory opinion, CEO 76-175, we advised that this provision would not prohibit a public officer from booking his official travel through a travel agency owned by him, when he personally incurred the expense of travel and was reimbursed later by his state agency for travel expenses. Our reasoning was that when one books his own airline reservations and pays for them with personal funds, he is incurring a personal obligation rather than obligating his public agency. Similarly, in CEO 80-1 we found that a direct sale to an employee of a state department traveling on department business by a travel agency owned by another employee of the department would not be prohibited by this section, even though the employee were reimbursed by the department, because the travel agency would not be doing business with the department. The Code of Ethics also provides:

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.]

This provision prohibits a public officer from having a contractual relationship with a business entity which is doing business with his agency. As explained above, however, our opinion is that your travel agency will not be doing business with the county but, rather, with the county employee who pays the travel agency for his official travel.

Section 112.313(7)(a), above, also prohibits a public officer from having any employment or contractual relationship which would impede the full and faithful discharge of his public duties. Your ownership of a travel business would constitute a contractual relationship with that business, as well as "employment," in the general sense of the word. See CEO's 78-93 and 79-16.

We are of the opinion that this provision would not be violated were your travel agency to sell its services to an employee of the county. Although you have substantial authority and responsibility as a county commissioner over the affairs of the county, the Broward County Charter specifies that the commission is to exercise the legislative power of the county. Sections 1.07 and 2.01A, Broward County Charter. In addition, you have advised that the administrative functions of the county are exercised by the county administrator, who is responsible for the appointment, suspension, and removal of all other county employees. To this end, you advise, the commission has enacted a civil service ordinance for personnel administration within county government, with the commission having no function in the appellate process of the civil service system. Thus, your ownership of a travel agency doing business with county employees would not impede the full and faithful discharge of your public duties.

However, we would like to call your attention to the following provision of the Code of Ethics:

MISUSE OF PUBLIC POSITION. -- No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), F. S.]

In this regard, we note that you have advised in your letter of inquiry that it is not your intention to solicit any business with the county. In light of the considerable authority and influence a county commissioner enjoys within county government, we agree that such solicitation on your part would violate the above-cited s. 112.313(6). In the absence of such use of your public position, we find that the Code of Ethics does not prohibit your owning a travel agency which would book reservations for county employees traveling on official business.