CEO 80-90 -- December 4, 1980

CONFLICT OF INTEREST

CITY COUNCIL MEMBER SERVING AS CITY ENGINEER

To: Sid Farley, Hacienda Village City Engineer, Ft. Lauderdale

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(10)(a), F. S., would prohibit a member of a city council from being employed by that city. However, when one provides services without compensation and without employee benefits, there is no "employment." See, for example, CEO 77-69. Accordingly, no prohibited conflict of interest would be created under the Code of Ethics for Public Officers and Employees were one to be elected to serve as a member of a city council while also serving as a part-time city engineer without compensation.

QUESTION:

Would a prohibited conflict of interest be created were I to be elected to serve as a member of a city council while also serving as part-time city engineer without compensation?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff you advise that you have been appointed by the Mayor of the City of Hacienda Village as city engineer. In this position, you advise, you receive no compensation and no benefits from the city for your part-time, voluntary service to the city. You question whether your service as city engineer would prohibit you from also serving as an elected member of the city council.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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 a city council from being employed by that city. However, as your services are provided without compensation and without employee benefits, we find that you are not an employee of the city as city engineer. Rather, it appears that you are donating your time and expertise as a professional engineer to the city. Similarly, in CEO 77-69, we found that s. 112.313(10)(a), F. S., did not prohibit a member of a city council from serving as a certified reserve police officer for the city without pay.

Accordingly, we find that no prohibited conflict of interest would be created under the Code of Ethics for Public Officers and Employees were you to be elected to serve as a member of the city council while also serving as part-time city engineer without compensation. Although your position as city engineer is not one of employment with the city, it is possible that the city engineer is an officer of the city. In that event, the dual-officeholding prohibition of s. 5, Art. II, State Const., may prohibit you from serving in both capacities. As we have no authority to interpret that provision of the Constitution in an advisory opinion, you may wish to contact the Attorney General for his opinion.