CEO 77-159 -- October 24, 1977

CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST

PUBLIC DEFENDER MEMBER OF GOVERNOR'S COMMISSION ON CRIMINAL JUSTICE AND DADE COUNTY CRIMINAL JUSTICE ADVISORY COUNCIL; SPOUSE WORKING FOR DADE COUNTY JUSTICE PLANNING UNIT WHICH SERVES AS STAFF FOR CRIMINAL JUSTICE ADVISORY COUNCIL

To: Bennett H. Brummer, Public Defender, Miami

Prepared by: Phil Claypool

SUMMARY:

No provision of the Code of Ethics for Public Officers and Employees prohibits a public defender from serving simultaneously on a county criminal justice advisory council and the Governor's Commission on Criminal Justice. Neither is a voting conflict of interest created pursuant to s. 112.3143, F. S., where such public defender votes, either as a member of the commission or council, upon grant applications or other matters which may be advantageous or disadvantageous to the office of the public defender, as any gain would inure to his office rather than to him privately. No potential voting conflict is created by virtue of his wife's being employed on the county staff which serves the council, as the terms of conditions of her employment are determined solely by the county rather than by the council.

QUESTIONS:

1. Does a prohibited conflict of interest exist where I, a public defender, serve on a commission or advisory council concerned with the distribution of federal funds to criminal justice agencies?

2. Does a voting conflict of interest exist when I vote, either as a member of the Governor's Commission on Criminal Justice Standards and Goals or as a member of the Dade County Criminal Justice Advisory Council, upon grant applications or other matters which may be advantageous or disadvantageous to the office of the public defender?

3. Does a voting conflict of interest exist when I vote as a member of the Governor's Commission on Criminal Standards and Goals on matters concerning the Dade County Criminal Justice Advisory Council or its staff, where my spouse is a county employee who serves as staff to the council?

Question 1 is answered in the negative.

In your letter of inquiry you advise that you are the Public Defender for the Eleventh Judicial Circuit and that you have been appointed by the Governor to serve on the Governor's Commission on Criminal Justice Standards and Goals and on the Dade County Criminal Justice Advisory Council (CJAC).

Pursuant to Public Law 90-351, the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C.A. s. 3701, et. seq., as amended, both the Governor's Commission and the CJAC have been established to provide the state and units of general local government with comprehensive plans based upon the evaluation of state and local problems of law enforcement and criminal justice and to disburse federal grants to the state and units of local government to improve and strengthen law enforcement and criminal justice. Under the act, the Governor's Commission is the state planning agency, and the Dade County CJAC is the equivalent of one of several regional planning units; each is required to be representative of law enforcement and criminal justice agencies, and the CJAC is required to be comprised of a majority of local elected officials. 42 U.S.C.A. s. 3723(a)(1976).

Federal funds are available to establish a comprehensive state plan which is based upon the plans submitted by the regional planning unit. Once the state plan has been established, federal grants from the Law Enforcement Assistance Administration are then made available to units of local government and criminal justice agencies which submit applications for projects to the regional planning units (CJAC), which in turn forward approved projects to the Governor's Commission for final approval, if they are found to be in accordance with the comprehensive state plan.

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. 1975.]

This provision prohibits a public officer from having an employment or contractual relationship with an agency which is regulated by or doing business with his agency; it also prohibits a public officer from having an employment or contractual relationship that would create a frequently recurring conflict between his private interests and the performance of his public duties. However, none of your positions as member of the Governor's Commission, as member of the CJAC, or as public defender are held as a result of an employment or contractual relationship with an agency. See CEO's 76-202, 77-16, and 77-21.

Therefore, the above-quoted provision does not apply to your situation. Nor do the facts here involve purchasing goods or services for your agency from a business entity in which you have an interest or your privately providing goods or services to your agency, both of which are prohibited under s. 112.313(3), F. S. 1975.

Accordingly, we find that the Code of Ethics does not prohibit you from serving on the Governor's Commission on Criminal Justice Standards and Goals or on the Dade County Criminal Justice Advisory Council while holding the office of public defender.

Question 2 is answered in the negative.

The Code of Ethics provides in relevant part:

Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143, F. S. 1975.]

Thus, a public officer is not prohibited from voting on measures in which he has a conflict of interest. Under the provisions of s. 286.012, F. S. 1975, he may abstain when he has or even appears to have a conflict of interest under the Code of Ethics. In accordance with that provision, we have advised that an officer may abstain when he feels that he cannot remain independent and impartial in relation to any official matter. See CEO's 77-56, 77-57, and 77-62.

However, should an officer vote upon a measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of a principal by whom he is retained, he must disclose the nature of his interest in a written memorandum. Here, although a particular measure may be of personal or professional interest to you as a public defender, none of the measures to be considered by the Governor's Commission or the CJAC will inure to your special private gain, but rather to the gain of your public agency. Nor are we of the opinion that your public agency constitutes a principal by whom you are retained.

Accordingly, you may choose to vote upon grant applications or other matters which may be advantageous or disadvantageous to the office of the public defender, in which case you need not file a Memorandum of Voting Conflict, or you may choose to abstain from voting on any of those measures if you feel that you cannot remain independent and impartial.

Based on the facts currently before us, question 3 is answered in the negative.

You have informed us that the Governor's Commission and the CJAC are state created and appointed boards. Your spouse is employed by the Dade County Criminal Justice Planning Unit (CJPU). Although the CJPU serves as staff to the CJAC, the CJPU is an agency of Dade County and an ongoing, integral part of the Dade County Manager's office. As your spouse is a part of the county's classified personnel system, which system controls the terms and conditions of her employment, her salary and other benefits are determined by the county and are not dependent upon the amount of LEAA funding made available to the county. Under these circumstances, any vote you might cast concerning the CJAC would affect Dade County generally rather than your spouse specifically. In such instances your vote would not inure to your spouse's special, private gain, but to the benefit of the public agency by which she is employed.