CEO 83-44 -- June 16, 1983

CONFLICT OF INTEREST

FLORIDA HOUSING FINANCE AGENCY MEMBER EMPLOYED BY COMPANY SERVING AS UNDERWRITER OF AGENCY'S BONDS

To: Mr. Mark Hendrickson, Executive Director, Florida Housing Finance Agency

SUMMARY:

No prohibited conflict of interest would be created were the Florida Housing Finance Agency to contract with a company which employs a member of the Agency to serve as underwriter for bonds for the Agency. In this case, the disclosure and abstention requirements of Section 420.512, Florida Statutes, control over the prohibition of Section 112.313(7)(a), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created were the Florida Housing Finance Agency to contract with a company which employs a member of the Agency to serve as underwriter for bonds for the Agency?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. Clark Bennett, a member of the Florida Housing Finance Agency, also is employed by a company which may serve as underwriter of bonds for the Agency. This relationship, you advise, would be created by a contract designating the company as underwriter for the Agency as permitted by anticipated legislation. Subsequent agreements for bond sales and the terms of such agreements, such as the price of the bonds, discount, timing, and fees for the underwriter, would be negotiated by the State Division of Bond Finance.

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 public officer from being employed by a business entity which is doing business with his agency. However, we find that this provision of the Code of Ethics would not prohibit the subject Agency member's employment with an underwriter with the Agency, because the Legislature has included in the Florida Housing Finance Agency Act the following provision:

CONFLICTS OF INTEREST. -- If any member, officer, or employee of the agency shall have an interest, either direct or indirect, in any contract to which the agency is, or is to be, a party or in any sponsor or in any lending institution requesting a loan from, or offering to sell mortgage loans or obligations to, the agency, such interest shall be disclosed to the agency in writing and shall be set forth in the minutes of the agency. The member, officer, or employee having such interest shall not participate in any action by the agency with respect to the contract, sponsor, or lending institution. [Section 420.512(1), Florida Statutes (1981).]

Rather than prohibiting an Agency member from having a direct or indirect interest in a contract to which an Agency is a party, the Legislature has provided by this section that any such interest is to be disclosed to the Agency and the member is to refrain from participating in any action by the Agency with respect to the contract.

We are of the opinion that Section 420.512(1) controls over the general prohibition of Section 112.313(7)(a) for two reasons. First, the latest expression of legislative intent is regarded to be the law, and we note that Section 420.512 was enacted in 1980, whereas Section 112.313(7)(a) was enacted in 1975. Secondly, a more specific statute will operate as an exception to a general statute to the extent of any conflict. Here, of course, Section 420.512 applies only to the Florida Housing Finance Agency and particular matters involving that Agency, in contrast to the generality of Section 112.313(7)(a). 30 Fla. Jur. Statutes, Sections 120 and 121.

Accordingly, we find that no prohibited conflict of interest would be created were the subject Finance Agency member to be employed by a company serving as underwriter of bonds for the Agency.