CEO 83-7 -- January 27, 1983

CONFLICT OF INTEREST

COUNTY COMMISSIONER EMPLOYED BY TELEPHONE COMPANY PROVIDING SERVICES TO COUNTY

To: Mr. Scott I. Cowan, Broward County Commissioner

SUMMARY:

No prohibited conflict of interest would be created were a county commissioner to return from a leave of absence as an employee of a telephone company begun prior to his taking office, where that company is providing telephone and other services to the county. Under previous opinions, CEO's 80-88, 77-37, 76-114, and 76-148, business transactions occurring prior to the time the official took office are impliedly "grandfathered in." Any future business between the county and the telephone company must come within the terms of one of the exemptions created in Section 112.313(12), Florida Statutes, in order to avoid a violation of Section 112.313(7), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created were you, a county commissioner, to return from a leave of absence as an employee of a telephone company begun prior to your taking office, where that company is providing telephone and other services to the county?

Your question is answered in the negative.

In your letter of inquiry you advise that recently you were elected as a member of the Broward County Commission. You advise that prior to and during your campaign you were employed with a telephone company as an account executive to sell business systems to a specific market, including grocery stores, restaurants, and primary metal manufacturing companies in areas of the County and an adjacent county. You advise that you were given a political leave of absence without pay prior to your being sworn into office but now would like to return to your former position with the company. Finally, you advise that while the telephone company is essentially the only source of telephone service within the County, the County does have certain agreements with the company for services which could be provided by other business entities. These include services such as telephone answering equipment, private lines, and telephone consoles used by County operators.

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

This provision prohibits a County Commissioner from being employed with a business entity which is doing business with the County. See CEO 81-28, in which we advised that a county commissioner could not be employed as a salesman by an engineering company which was doing business with the county.

However, the Code of Ethics also provides:

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, Florida Statutes (1981).]

In previous advisory opinions, we have read this provision to imply a "grandfather clause" which would exempt from Section 112.313(7) business transactions occurring prior to the time the subject official took office. See CEO's 80-88, 77-37, 76-114, and 76-148. In light of this precedent, we are of the opinion that Section 112.313(7)(a) would not prohibit you from returning to your employment with the telephone company because of agreements and contracts between the County and the company existing at the time you assumed office.

In the future, any business done between the County and the telephone company must come within the terms of one of the exemptions to Section 112.313(7) [contained in Section 112.313(12), Florida Statutes] in order to avoid a prohibited conflict of interest on your part. Among those exemptions the most likely to be applicable are where the purchase by the County is made through a system of sealed, competitive bidding, and where the telephone company would be the only source of supply in the County for the goods or services being purchased by the county. In addition, please note that Section 112.313(12)(c) exempts purchases or sales "for any utilities service," which would include telephone service. In the event a situation arises in which the County may lease or purchase additional telephone equipment or services, we are available to provide upon your request a more specific interpretation of these exemptions in that particular context.

Accordingly, we find that no prohibited conflict of interest would be created were you to return from your leave of absence as an employee of the telephone company, despite the fact that the company is providing services to the County under agreements entered into before you took office.