CEO 84-4 -- January 26, 1984

CONFLICT OF INTEREST

MOBILE HOME PARK RECREATION DISTRICT TRUSTEE EMPLOYED AS SECURITY GUARD BY DISTRICT

To: (Name withheld at the person's request.)

SUMMARY:

A prohibited conflict of interest would be created were a member of the board of trustees of a mobile home park recreation district to be employed as a security guard by the district or to be employed as a guard by a watchman, guard, or patrol agency contracting to provide security for the district. Section 112.313(10), Florida Statutes, prohibits a public officer from being employed by a special taxing district while serving on the governing board of the district. Section 112.313(7)(a), Florida Statutes, prohibits a public officer from being employed by a business entity doing business with his agency. The exemption to this prohibition created by Section 112.313(7)(a)1, Florida Statutes, for special tax districts created by general or special law to construct and maintain improvements in the area of the district, would not apply as the mobile home park recreation district was created by ordinance.

QUESTION:

Would a prohibited conflict of interest be created were a member of the board of trustees of a mobile home park recreation district to be employed as a security guard by the district or to be employed as a guard by a watchman, guard, or patrol agency contracting to provide security for the district?

Your question is answered in the affirmative.

In your letter of inquiry and in a telephone conversation with our staff, you advise that .... recently was elected to membership on the Board of Trustees of the Port Malabar Holiday Park, Mobile Home Park Recreation District, a special taxing district created by referendum election under a city ordinance authorized by Chapter 83- 204, Laws of Florida. You also advise that the subject trustee is employed by the developer of the mobile home park as a security guard. Finally, you advise that it is contemplated that after purchasing the common areas of the park from the developer, the District either will hire directly its own security guards or will contract with a guard agency for those services. The subject trustee questions whether he may continue as a security guard at the park, either as an employee of the District or as an employee of the guard agency providing services to the District.

The Code of Ethics for Public Officers and Employees provides in relevant part:

EMPLOYEES HOLDING OFFICE. -- No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his employer while, at the same time, continuing as an employee of such employer.

[Section 112.313(10), Florida Statutes, 1983.]

This provision prohibits a public officer from being employed by a special taxing district while serving on the governing board of the district. Therefore, the subject trustee is prohibited from being employed directly as a security guard by the district.

The Code of Ethics also 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), Florida Statutes (1983).]

This provision prohibits the subject trustee from being employed by a business entity, such as the security guard agency, which is doing business with the district. Your letter references the exemption contained in Section 112.313(7)(a)1, Florida Statutes, which provides:

When the agency referred to is that certain kind of special tax district created by general or special law and is limited specifically to constructing, maintaining, managing, and financing improvements in the land area over which the agency has jurisdiction, or when the agency has been organized pursuant to chapter 298, then employment with, or entering into a contractual relationship with, such business entity by a public officer or employee of such agency shall not be prohibited by this subsection or be deemed a conflict per se. However, conduct by such officer or employee that is prohibited by, or otherwise frustrates the intent of, this section shall be deemed a conflict of interest in violation of the standards of conduct set forth by this section.

However, we find that this exemption does not apply, as the District was not created by general or special law, as required by the exemption, but rather was created by city ordinance. See CEO 82-32, in which we advised that we normally would interpret this exemption to apply only where a district has been created by general or special law, as opposed to county ordinance. The conclusion reached in that opinion, which is contrary to that reached here, was based upon a specific exemption provided in Section 190.007(1), Florida Statutes. In contrast, there is no such exemption provided here; in fact, Chapter 83-204, Section 35(4), Laws of Florida, provides that mobile home park district trustees "shall be subject to all laws of the state relating to . . . avoidance of conflicts of interest, and ethics."

Accordingly, we find that a prohibited conflict of interest would be created were the subject trustee to be employed as a security guard by the mobile home park recreation district directly or by a security agency which has contracted with the district to provide security guards.