CEO 83-37 -- June 16, 1983

CONFLICT OF INTEREST

COUNTY COMMISSIONER EMPLOYED BY COMPANY PROVIDING SERVICES TO FOREIGN INVESTORS

To: Mr. Burt L. Saunders, Collier County Attorney

SUMMARY:

No prohibited conflict of interest would be created were a county commissioner to be employed as vice president of a company providing services to foreign investors, where the president and owner of the company is an employee of a corporation developing property in the county. Zerweck v. Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982) is distinguished on the ground that the county commissioner would not be employed by the development company and her employment would not be related to any development activities.

QUESTION:

Would a prohibited conflict of interest be created were a county commissioner to be employed as vice president of a company providing services to foreign investors, where the president and owner of the company is an employee of a corporation developing property in the county?

Your question is answered in the negative.

In your letter of inquiry you advise that Ms. Mary-Frances Kruse, a member of the Collier County Commission, is contemplating employment as vice president of a company which has been created to assist foreign investors in U.S. real property in their efforts to comply with the federal Foreign Investors Real Property Tax Act of 1980, which requires the disclosure of certain interests in real property held by foreign investors. You also advise that the President and owner of this company is an employee of a corporation which currently is developing property in the County. During the next year, this person anticipates that the developer will be before the Board of County Commissioners frequently. However, he has indicated that he intends to retire from the corporation when he reaches age 65 next year. Finally, you advise that this corporation has no interest in the company which would employ the subject County Commissioner.

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).]

The first part of this section prohibits a County Commissioner from having any employment or contractual relationship with a business entity which either is doing business with, or is subject to the regulation of, the County Commission. Under the circumstances you have presented, it does not appear that the company which would employ the subject Commissioner is doing business with or is regulated by the County Commission.

The second part of this section of the Code of Ethics prohibits a public officer from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of her public duties. This provision

establishes an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.' [Zerweck v. Commission on Ethics, 409 So.2d 57, 61 (Fla. 4th DCA 1982).]

In Zerweck we found that a city commissioner's employment with a developer in the city as development coordinator would present a frequently recurring conflict between his private interests and the performance of his public duties.

However, unlike the situation in Zerweck, the subject County Commissioner has no direct relationship with the developer, and the developer does not have an interest in the foreign investors registration company which would employ her. Also, the subject Commissioner would have no private responsibility for, or involvement in, the development activities of the developer, unlike Zerweck, in which the city commissioner was employed as development coordinator. For these reasons, we conclude that the proposed employment of the subject Commissioner would not present her with a continuing or frequently recurring conflict of interest and would not impede the full and faithful discharge of her public duties in violation of the Code of Ethics for Public Officers and Employees.

Accordingly, we find that no prohibited conflict of interest would be created were the subject County Commissioner to be employed as vice president of a company providing services to foreign investors.