CEO 82-58 -- July 29, 1982

FINANCIAL DISCLOSURE; CONFLICT OF INTEREST

CITY SOCIAL SERVICES ALLOCATIONS COMMITTEE MEMBER EMPLOYED BY AGENCY APPLYING FOR SOCIAL SERVICE FUNDS FROM CITY

To: Mr. John C. Wolfe, Chief Assistant City Attorney, City of St. Petersburg

SUMMARY:

The members of the St. Petersburg Social Services Allocations Committee are not local officers subject to the requirement of filing a statement of financial interests annually under Section 112.3145, Florida Statutes. Here, the Committee meets the statutory definition of being an "advisory body" and therefore is exempted from the disclosure law. Section 112.312(1), Florida Statutes.

A prohibited conflict of interest would be created were a member of the Social Services Allocations Committee to be employed as director of an agency applying to the Committee for funds. Section 112.313(7), Florida Statutes, prohibits a public officer from having any employment which would create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. This provision would be violated, if a Committee member were to be employed by a social services agency applying for funding from the Committee, since there is only a fixed amount of funding available to be distributed by the City to social services agencies. However, Section 112.313(12), Florida Statutes, allows the appointing authority of an advisory board member to waive a conflict of interest on the part of the advisory board member. CE Form 4A, "Disclosure of Business Transaction, Relationship, or Interest," has been promulgated for use in making the disclosure required by this provision.

QUESTION 1:

Are the members of the St. Petersburg Social Services Allocations Committee "local officers" subject to the requirement of filing a Statement of Financial Interests annually?

This question is answered in the negative.

The Code of Ethics for Public Officers and Employees provides that each "local officer" shall file a statement of financial interests annually. Section 112.3145(2)(b), Florida Statutes. The term "local officer" is defined to include

[A]ny appointed member of a board, commission, authority, community college district board of trustees, or council of any political subdivision of the state, excluding any member of an advisory body. A governmental body with land-planning, zoning, or natural resources responsibilities shall not be considered an advisory body. [Section 112.3145 (1)(a)2, Florida Statutes (1981).]

In turn, the term "advisory body" is defined to mean

any board, commission, committee, council, or authority, however selected, whose total budget, appropriations, or authorized expenditures constitute less than 1 percent of the budget of each agency it serves or $100,000, whichever is less, and whose powers, jurisdiction, and authority are solely advisory and do not include the final determination or adjudication of any personal or property rights, duties, or obligations, other than those relating to its internal operations. [Section 112.312(1), Florida Statutes (1981).]

In your letter of inquiry and in a telephone conversation with our staff you advised that the City Council of the City of St. Petersburg has created by resolution a Social Services Allocations Committee, the members of which are appointed by the City Council. You also advised that each year the City Council allocates a fixed amount of money to be distributed to outside agencies involved in public service work benefiting the citizens of the City. All agencies who wish to receive a part of that money must apply to the Committee. The Committee considers all applications and then decides which agencies should receive funds and how the money should be allocated. The Committee's recommendation then is provided to the City Council for ratification. The Committee is authorized only to make a recommendation and cannot make a binding decision. In addition, you advised that the Committee has no budget, appropriations, or authorized expenditures.

In our view, the Social Services Allocations Committee is an "advisory body," as its powers, duties, and budget fall within the statutory definition of that term. Nor does it appear that the Committee has any land-planning, zoning, or natural resources responsibilities.

Accordingly, we find that the members of the City of St. Petersburg Social Services Allocations Committee are not "local officers" and therefore are not required to file a statement of financial interests annually under Section 112.3145, Florida Statutes.

QUESTION 2:

Would a prohibited conflict of interest be created were a member of the Social Services Allocations Committee to be employed as director of an agency applying to the Committee for funds?

This question is answered in the affirmative, subject to the exemption noted below.

In your letter of inquiry and in a telephone conversation with our staff you advise that Mr. James E. Jackson is employed as the Director of a social services agency which will be applying to the Social Services Allocations Committee for funds. You question whether he may serve on the Committee while maintaining that employment.

The Code of Ethics 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), Florida Statutes (1981).]

In particular, this provision prohibits a public officer from having any employment which would create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. We are of the opinion that this provision would prohibit a member of the Committee from being employed by an agency which would apply to the Committee for funding.

The term "public officer" as used by the Legislature in this provision includes any person serving on an advisory body. Section 112.313(1), Florida Statutes. Under the circumstances you have presented, it appears that there is only a fixed amount of funding available to be distributed by the City to social services agencies. Therefore, to the extent that one agency receives a greater share of funding, another must receive a lesser share. In addition, we note that you have advised that although the Committee's decisions are recommendations, the City Council has never failed to ratify their decisions. For these reasons, we are of the opinion that a Committee member's employment as director of an agency applying for funds from the Committee would tend to lead to disregard of his public duty to independently and impartially determine which agencies are to receive varying amounts of funding. See Section 112.312(6), Florida Statutes, defining the term "conflict of interest," and Section 112.311(1), Florida Statutes.

However, we note that Section 112.313(12), Florida Statutes, provides an exemption for persons serving on an advisory board where a waiver is obtained from the body which appointed the person to the advisory board upon a full disclosure of the transaction or relationship and an affirmative vote in favor of waiver by a two- thirds vote of that body. We have promulgated Commission on Ethics Form 4A, "Disclosure of Business Transaction, Relationship, or Interest," for use in making the disclosure required by this provision.

Accordingly, we find that unless a waiver is obtained from the City Council in accordance with the provisions of Section 112.313(12), Florida Statutes, a member of the Social Services Allocations Committee may not be employed as director of an agency applying to the agency for funds.