CEO 81-33 -- May 14, 1981

CONFLICT OF INTEREST

CITY DEPARTMENT DIRECTOR AND ASSISTANT DIRECTOR SERVING ON BOARD OF DIRECTORS OF NONPROFIT ORGANIZATION LEASING DEPARTMENT FACILITY

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

SUMMARY:

No prohibited conflict of interest was created where the director and assistant director of a city department of leisure services were members of the board of directors of a nonprofit organization which leased a department facility for a boxing tournament. As determined in CEO 77-167, noncompensated membership on the board of directors of a nonprofit organization does not constitute an employment or contractual relationship with the organization. For this reason, Section 112.313(7)(a), F. S., which prohibits certain conflicting employment or contractual relationships, is not applicable. Nor is Section 112.313(3), F. S., which prohibits a public employee from serving as a director of a business entity which sells, rents, or leases any realty, goods, or services to his own agency, applicable. In this situation, the boxing organization leased the facility from the department rather than to the department. In addition, no prohibited conflict of interest was created where the wife of the assistant director of the department of leisure services sold trophies to the nonprofit boxing organization for a boxing tournament held at a department facility. There are no provisions in the Code of Ethics which would prohibit sales by the spouse of a public employee to a private entity.

QUESTION 1:

Was a prohibited conflict of interest created where a city department of leisure services, of which you are the director, leased a department facility to a nonprofit organization, of which you are a member of the board of directors, for a boxing tournament?

This question is answered in the negative.

In your letter of inquiry you advise that you are the Director of the Department of Leisure Services of the City of Miami and that you are a member of the Board of Directors of a nonprofit boxing organization. Recently, you advise, the organization staged its annual boxing tournament at one of the Department's facilities, which was leased through the Permitting Division of the Department. In a telephone conversation with our staff, you advised that the gymnasium was rented to the organization at a standard rate set by City ordinance. You also advised that you receive no compensation for serving on the Board of Directors of the organization.

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), F. S. (1981).]

This provision prohibits a public employee from being employed by, or having a contractual relationship with, a business entity which is doing business with his agency.

However, we find that as a noncompensated member of the Board of Directors of the nonprofit boxing organization, you are not employed by and do not have a contractual relationship with the organization. For the same reason, we found in previous opinion CEO 77-167 that a prohibited conflict of interest would not exist if a city commissioner were to accept membership on the board of trustees of a nonprofit corporation which leased property from the city.

The Code of Ethics in Section 112.313(3), F. S. (1979), prohibits a public employee from serving as a director of a business entity which sells, rents, or leases any realty, goods, or services to his own agency. We find that this provision also does not apply to the circumstances you have presented, as the boxing organization leased the facility from the Department rather than to the Department.

Accordingly, we find that no prohibited conflict of interest was created by your Department's leasing of the facility to the nonprofit boxing organization.

Your second question is substantially as follows:

QUESTION 2:

Was a prohibited conflict of interest created where the Department of Leisure Services leased a Department facility to a nonprofit boxing organization, of which the Department assistant director is a member of the Board of Directors, for a boxing tournament?

This question also is answered in the negative, based upon the rationale expressed in our response to your first question.

QUESTION 3:

Was a prohibited conflict of interest created where the wife of the assistant director of the Department of Leisure Services sold trophies to the nonprofit boxing organization for the boxing tournament held at the Department facility?

This question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advised that in connection with the recent boxing tournament held at one of the Department's facilities the tournament chairman purchased boxing trophies from a trophy corporation owned by the wife of the Assistant Director of the Department. You also advised that neither the tournament chairman nor the wife of the Assistant Director is a public employee and that no City funds were involved in the purchase of the trophies.

As the Code of Ethics for Public Officers and Employees governs the conduct only of public officers, public employees, and candidates for public office, it does not apply to the tournament chairman or to the wife of the Assistant Director of the Department. In addition, there are no provisions in the Code of Ethics which would prohibit sales by the spouse of a public employee to a private entity. Accordingly, we find that no prohibited conflict of interest was created where the wife of the Assistant Director of the Department of Leisure Services sold trophies to a nonprofit boxing organization for a tournament held at a Department facility.