CEO 76-112 -- June 17, 1976

CONFLICT OF INTEREST

CITY COUNCILMAN A MUNICIPAL HOSPITAL EMPLOYEE

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

Prepared by: Gene Rhodes

SUMMARY:

A city councilman is not prohibited from holding employment with the municipal hospital the board of trustees of which consists of members appointed by the mayor and confirmed by the city council. Although a public officer is prohibited from holding employment with an agency subject to the regulation of his public agency [Fla. Stat. s. 112.313(7)(1975)], the ordinance establishing the hospital board of trustees gives that board complete control over hospital operations. The confirmation of board members by the city council does not, in our view, constitute regulation for purposes of this provision of the law.

QUESTION:

Does a prohibited conflict of interest exist where I, a city councilman, am employed by my city's municipal hospital?

This question is answered in the negative.

You inform us in your letter of inquiry that you have been employed by the municipal hospital since 1973 and were elected to the city council in 1975. The members of the hospital's board of trustees are appointed by the mayor and confirmed by the city council. The council also has the power to remove any member of the board for cause and to fill vacancies on the board. The ordinance establishing the board of trustees gives the board complete control over the hospital and, with the exception of the city council's role in the appointment of members to the board, the council apparently has retained no regulatory control over the hospital except through the enactment of laws. ____ Ordinance, No. 180.

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

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. --

(a) 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. . . .

* * * * *

2. When the agency referred to is a legislative body and the regulatory power over the business entity resides in another agency, or when the regulatory power which the legislative body exercises over the business entity is strictly through the enactment of laws or ordinances, then employment or contractual relationship with such business entity by a public officer or employee of a legislative body shall not be prohibited by this subsection or be deemed a conflict. . . . [Fla. Stat. s. 112.313(7)(1975).]

This provision prohibits a public officer from having employment with an agency which is subject to the regulation of the agency of which he is an officer. We do not believe that the city council's appointment powers, which are discussed above, constitute regulation in the sense envisioned by this prohibition. Accordingly, the situation you describe does not violate the above-quoted provision.

In your letter of inquiry you refer to s. 112.313(10)(a). This provision states:

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. [Fla. Stat. s. 112.313(10)(a)(1975).]

This provision does not apply as the city council, of which you are a member, is not the governing board of the hospital. Consequently, you are not prohibited from holding a seat on the city council while concurrently being employed by the municipal hospital.