CEO 81-70 -- October 29, 1981

CONFLICT OF INTEREST

TOWN COUNCIL MEMBER OWNING WRECKER SERVICE CALLED BY POLICE FOR IMPOUNDED OR DISABLED VEHICLES

To: Mr. Edward B. Shifflett

SUMMARY:

No prohibited conflict of interest would be created were a town council member to own a wrecker service which is called by the town police to tow and store impounded or disabled vehicles, where the charges for these services are paid by the vehicles' owners rather than by the town. Since the wrecker service is not compensated by the town, it would not be selling its services to the town in violation of Section 112.313(3), Florida Statutes. Nor would the council member have any employment or contractual relationship with a business entity subject to the regulation of, or doing business with his agency, in violation of Section 112.313(7), Florida Statutes. CEO 76-148A is referenced in this regard.

QUESTION:

Would a prohibited conflict of interest be created were you to serve on a Town Council, where the Town police call your wrecker service to tow and store impounded or disabled vehicles, the charges for which are not paid by the Town?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff you advised that you own a wrecker service in the Town of Lady Lake which is used by the Town Police Department for towing and storing impounded vehicles, since the Town does not have an impound lot. Neither the Town nor the Police Department pays for these services, as all charges are paid by the owner of the vehicle. In addition, you advise that where a vehicle has been disabled, the police will ask its owner if he has a preference as to which wrecker service will be used before the police call your wrecker service. Finally, you advise that there are two other wreckers in the Town. One of these is owned by a local service station which does not provide 24-hour service, does not have a fenced lot, and which has indicated that it does not want calls from the police. The second wrecker, located at a salvage yard, is not in use; your wrecker service does the towing for the salvage yard. You question whether a prohibited conflict of interest would be created were you to serve on the Town Council while continuing to operate your wrecker service in this manner.

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

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.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1979).]

In a previous opinion, CEO 76-148A, we advised that this provision would be violated if a wrecker service owned by a city council member were to accept calls from city police to tow impounded vehicles where the city would pay for such services. However, under the circumstances you have described you would not be selling any services to the Town, since the vehicle owner rather than the Town would pay for storage and towing of an impounded vehicle.

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), Florida Statutes (1979).]

In CEO 76-148A we advised that this provision would not be violated if a wrecker service owned by a city council member accepted calls from the police department for the towing of disabled vehicles, paid by the owners of the vehicles. The situation you have described is substantially the same.

Accordingly, we find that no prohibited conflict of interest would be created were you to serve on the Town Council, where the Town Police call your wrecker service to tow and store impounded or disabled vehicles, the charges for which are paid by the vehicles' owners rather than by the Town.