CEO 84-102 -- October 18, 1984

CONFLICT OF INTEREST

CITY COUNCIL MEMBER CONTRACTING WITH BUSINESS REGULATED BY CITY PRICING ORDINANCE

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

SUMMARY:

No prohibited conflict of interest would be created were a city council member to be hired by a business to review claims, where that business is subject to a pricing ordinance of the city. It does not appear that the offer of employment was based on the understanding that the official's action would be influenced or that it was given to influence a matter in which he was expected to participate, as the question of employment did not arise until after the City had excepted the business from the ordinance. As the manner of regulation is limited in extent and does not contemplate continued involvement by the City Council, the proposed employment would not interfere with the full and faithful discharge of the Council member's public duties.

QUESTION:

Would a prohibited conflict of interest be created were you, a city council member, to be hired by a business to review claims where that business is subject to a pricing ordinance of the city?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that recently the City Council of which you are a member amended an ordinance regarding item pricing by retail businesses within the City. As amended, the ordinance still requires item pricing, but permits an exception for businesses which meet certain criteria and which request an exception from the City Council. One business which operates a grocery store within the City has requested and been granted an exception by the City Council.

In addition, you advise that after your vote for approval the business has asked you to perform some work as a claims consultant. In that capacity, you would review the status of claims being adjusted by the company's present claims adjusters and make recommendations to the business. You advise that you had been lobbied by executives of the company regarding the ordinance, but that at no time during your discussions was the matter of employment suggested or offered. It was only after City Council approval that your claims background was discussed.

At the present time, the business would appear before the City Council only if it opened another store within the City or if the existing store violated the provisions of the pricing ordinance in such a manner as to require the City Council to rescind its exception for the business.

In situations like this, we believe that the public's chief concern is whether their official's judgment has been swayed by the offer of employment. In this regard, the Code of Ethics for Public Officers and Employees prohibits a public officer from soliciting or accepting a promise of future employment based on any understanding that his official action would be influenced. Section 112.313(2), Florida Statutes. Also, the Code of Ethics prohibits a public officer from accepting any compensation when he knows, or with the exercise of reasonable care should know, that it was given to influence a vote in which he was expected to participate. Section 112.313(4), Florida Statutes. However, you have advised that the question of employment did not arise until after the ordinance was adopted and the exception was granted. Further, it does not appear that the offer was made with the expectation that the business would come before the City Council again concerning the pricing ordinance.

The Code of Ethics also contains provisions which prohibit a public official from entering into an employment or contractual relationship which would be in substantial conflict with the proper discharge of his duties in the public interest. In particular, Section 112.313(7)(a), Florida Statutes, prohibits a public officer from having any employment or contractual relationship with a business entity which is subject to the regulation of his agency. In our view, the City has undertaken the regulation of retail businesses by enacting the pricing ordinance and by permitting the City Council to grant exceptions to item pricing requirements.

Nevertheless, we recognize that this "regulation" is limited in extent and does not contemplate the continuing involvement of the City Council, once an exception has been granted. In this regard, you have advised that violations of the ordinance are punishable by a $500 fine per day of violation, to be enforced by the City prosecutor in the courts. Section 112.316, Florida Statutes, 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 (1983).]

Under these circumstances, we are of the opinion that your contracting with the business as a claims consultant would not interfere with the full and faithful discharge of your public duties.

Accordingly, under the circumstances presented, we find that no prohibited conflict of interest would be created were you to accept the offer of employment as a claims consultant by a business which has been granted an exception to the City's pricing ordinance. Please note that the provisions of Section 112.3143, Florida Statutes, as amended by Chapter 84-357, Laws of Florida, would require you to abstain from voting and disclose your relationship with the business should a matter involving the business come before the City Council during the time of your employment with the business. In addition, we wish to emphasize that our opinion is based solely on the consequences of the City's item pricing ordinance and should not be understood as applying to any other ordinance which in the future may apply to the company for which you will be working.