CEO 85-38 -- May 23, 1985

CONFLICT OF INTEREST

CITY COMMISSIONER EMPLOYED AS CITY BUILDING OFFICIAL

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

SUMMARY:

A prohibited conflict of interest exists under Section 112.313(10), Florida Statutes, where a city commissioner is employed as a building official for the city. A city charter provision which does not appear in a special act of the legislature would not create an exemption to a prohibition created by general law.

QUESTION:

Does a prohibited conflict of interest exist where you, a city commissioner, also serve as building official for the city?

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

In your letter of inquiry you advise that recently you were elected to the City Commission of the City of Key Colony Beach. You also advise that since December of 1980 you have been retained by the City as City Building Official. In that position you receive a specified fee per inspection made and receive a flat monthly payment from the City for travel and out-of-pocket expenses. You advise that you receive no payment for reviewing building plans or conferring with persons when assistance is needed from the City Building Department. Neither income tax nor social security is withheld from the fees paid to you.

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)(a), Florida Statutes (1983).]

This provision prohibits you from being employed by the City while serving as a member of the City Commission.

In the case of Wright v. State Commission on Ethics, 389 So.2d 662 (Fla. 1st DCA 1980), the Court interpreted this provision of the Code of Ethics, using the following definition of "employee":

An employee is one who for a consideration agrees to work subject to the orders and direction of another, usually for regular wages but not necessarily so, and, further, agrees to subject himself at all times during the period of service to the lawful orders and directions of the other in respect to the work to be done. [Id., at p. 663.]

In our view, this definition of "employee" fits your situation as City Building Official. The fact that no amounts are deducted from your compensation for taxes or social security is one factor to be considered in deciding whether one is an employee, but it is not a determinative factor. See CEO 78-65 for the factors to be considered in determining whether one is an "employee" or an "independent contractor."

You advise that Article IV, Section 3 of the City Charter provides as follows:

No Mayor-Commissioner or other Commissioner shall hold any compensated city office or city employment during the term for which he was elected except when authorized by the affirmative vote of at least four (4) members of the City Commission.

This provision does not appear in Chapter 57-1463, Laws of Florida, which chartered the City, or in any special act of the Legislature that we have found amending the City Charter. Therefore, we find that this provision of the City Charter cannot create an exception to the prohibition of Section 112.313(10), Florida Statutes. "A municipality cannot forbid what the legislature has expressly licensed, authorized, or required, nor may it authorize what the legislature has expressly forbidden." 12 Fla. Jur. 2d Counties and Municipal Corporations, Section 187.

You also have inquired about the effect of Section 112.313(7)(b), Florida Statutes, which provides that subsection 112.313(7)

shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance.

By its terms, this provision applies only to Section 112.313(7), and therefore not to Section 112.313(10).

Accordingly, we find that a prohibited conflict of interest exists by virtue of your serving as City Commissioner and City Building Official.