CEO 81-29 -- May 14, 1981

CONFLICT OF INTEREST

CITY CHARTER BOARD MEMBER EMPLOYED BY BANK SERVING AS DEPOSITORY FOR CITY FUNDS

To: Edward A. Gross, Member, Charter Board, Tamarac

SUMMARY:

No prohibited conflict of interest would be created were a member of a city charter board to be employed by a bank which serves as a depository of city funds, even though the board member, as an employee of the bank, might bid on interest rates for time deposits of the city. Although Section 112.313(3), F. S., prohibits a public officer from acting in a private capacity to sell any goods or services to the political subdivision which he serves or to any agency of that political subdivision, the city charter board is not responsible for the approval or the giving of advice or recommendations as to the deposit of city funds. Therefore, the board member's employment with the bank would not interfere with the full and faithful discharge of his public duties, and Section 112.316, F. S., requires that no prohibited conflict of interest be found. CEO 76-2, Questions 4 and 6, was referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, a member of a city charter board, to be employed by a bank which serves as a depository of city funds?

Your question is answered in the negative.

In your letter of inquiry you advise that recently you were elected to the Charter Board of the City of Tamarac. You also advise that you are employed by a local bank as business development officer, in which capacity you or employees under you will bid on time deposits of the City. In addition, the bank may solicit demand deposits from the City.

In a telephone conversation with our staff, you advised that time deposit bids are solicited from various local banks over the telephone by the City Finance Director, who places the deposit with the institution which offers the highest interest rate. The Charter Board, you advised, has no responsibility over the deposit of City funds.

The Code of Ethics for Public Officers and Employees 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. (1979).]

This provision prohibits a public officer from being employed by a business entity which is doing business with his agency. As a member of the Charter Board, that Board is your "agency," as that term is defined in Section 112.312(2), F. S. See CEO 77-9. However, the bank which employs you will not be doing business with the Charter Board, if a bid from the bank were to be accepted.

The Code of Ethics also 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.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), F. S. (1981).]

This provision prohibits a public officer from acting in a private capacity to sell any goods or services to the political subdivision which he serves or to any agency of that political subdivision. However, in construing the provisions of the Code of Ethics, we also must take into account the following provision:

Construction. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, F. S. (1979).]

This provision requires that the Code of Ethics be interpreted so as not to preclude a public officer from having employment which does not interfere with the full and faithful discharge of his public duties. As the Charter Board is not responsible for the approval of, or the giving of advice or recommendations as to the deposit of City funds, we find that your employment with the bank would not "interfere with the full and faithful discharge" of your public duties as a member of the Charter Board. See CEO 76-2, Questions 4 and 6, in which we advised that no prohibited conflict of interest existed where the president of a bank doing business with a county commission, a county school board, and a city also served on the county planning and zoning commission, a school board advisory committee, and a city park and recreation committee.

Accordingly, we find that no prohibited conflict of interest would be created were you to be employed as business development officer by a bank which serves as a depository of City funds.