CEO 80-50 -- July 18, 1980

CONFLICT OF INTEREST

CITY ENGINEER SERVING AS COMMISSIONER OF PORT AUTHORITY LOCATED PARTIALLY WITHIN CITY

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

Prepared by: Phil Claypool

SUMMARY:

Reference is made to CEO's 77-93 and 77-159, in which it was found that the holding of a public office does not constitute an employment or contractual relationship for purposes of s. 112.313(7)(a), F. S. As that provision of the Code of Ethics prohibits a public officer or employee from having any employment or contractual relationship with any agency which is either subject to the regulation of, or doing business with, his agency, it is necessary to ask whether a port commissioner's employment as city engineer would conflict with his duties as port commissioner, rather than vice versa. In the instant case, there is nothing to indicate that the city is regulated by the port or that the city is doing business with the port. Nor is there any indication that employment as city engineer would create a continuing or frequently recurring conflict with the performance of the port commissioner's duties. Therefore, no prohibited conflict of interest would be created were a city engineer to serve as an elected commissioner of a port located partially within the city.

QUESTION:

Would a prohibited conflict of interest be created were a city engineer to be elected as commissioner of a port authority which is located partially within the city?

Your question is answered in the negative.

In your letter of inquiry and a telephone conversation with our staff you advised that Mr. Marshall Bergacker presently is the City Engineer of the City of Hollywood and that he wishes to become a candidate for election to the Port Commission of Port Everglades. You further advised that part of Port Everglades lies within the city limits of the City of Hollywood. Thus, the building division of the City of Hollywood enforces the South Florida Building Code in the portion of the port located within the city. You also advised that the city engineer is in charge of the engineering department, which includes the city building division. Finally, you advised that the city has other building regulations apart from the South Florida Building Code which are enforced within the port by the building division by mutual agreement.

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 . . . 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 or employee from having any employment or contractual relationship with any agency which is either subject to the regulation of, or doing business with, his agency. In previous opinions, we have advised that the holding of a public office does not constitute an employment or contractual relationship. See CEO's 77-93 and 77-159. Thus, we examine the subject city engineer's situation and ask whether his employment as city engineer would conflict with his duties as port commissioner, rather than asking whether his service as elected port commissioner would conflict with his employment as city engineer.

None of the facts you have presented indicates that the city is regulated by the port authority or that the city is doing business with the port authority. Nor do we find that employment as city engineer would create a continuing or frequently recurring conflict with the performance of a port commissioner or would impede the full and faithful discharge of a port commissioner's public duties. The commissioners of Port Everglades serve as the governing body of the port. Chapter 65-1318, Laws of Florida, as amended. In our view, the performance of the responsibilities of city engineer would not present a conflict of interest with the responsibility of governing the port.

Accordingly, we find that no prohibited conflict of interest would be created under the Code of Ethics for Public Officers and Employees were a city engineer to serve as elected port commissioner of a port located partially within the city.