CEO 86-41 -- May 15, 1986

CONFLICT OF INTEREST; VOTING CONFLICT

CITY COUNCIL MEMBER ENGINEER RETAINED BY UTILITY COMPANY PURCHASING WATER FROM CITY

To: Mr. Ted G. Yeatts, Councilman, City of Venice

SUMMARY:

No prohibited conflict of interest would be created were a private utility company which has retained the engineering services of a city council member to contract to purchase water from the city for a department of transportation rest area on an interim basis. Section 112.313(12)(c), Florida Statutes, exempts purchases or sales for any utilities service. However, the council member would be prohibited by Section 112.3143(3), Florida Statutes, from voting on the proposed purchase of water from the city by the utility company, as the measure would inure to the special gain of a principal by whom he is retained.

QUESTION 1:

Would a prohibited conflict of interest be created were a private utility company, which has retained your engineering services, to contract to purchase water for a Department of Transportation rest area from the city which you serve as a council member?

This question is answered in the negative, under the circumstances presented.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that recently you were elected to serve as a member of the Venice City Council. You also advise that you are a professional civil engineer and that prior to your election you were retained by a private utility company to provide services regarding miscellaneous water and sewer line extensions.

Before your service on the Council, both the State and Federal Departments of Transportation approached the City about extending water and sewer lines to serve a rest area located on Interstate 75 approximately five miles outside the City limits. The City decided not to do this. As the area in which the rest stop is located is in your client's service area, the Department then contacted the private utility for water and sewer service and to design and build the necessary water and sewer line extensions, which would be paid for by State and Federal funds. However, unless the Department wants to drill for water, there are no sources of surplus or excess water other than the City. Therefore, the utility company desires to purchase water from the City on an interim basis (from 2 to 5 years) until the County brings in its water supply. This request must be approved by the City Council. The agreement would specify that the City would sell up to a certain number of gallons of water per month at a specified cost for a specified period of time. You advise that the City has excess water.

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), Florida Statutes (1985).]

This provision prohibits you from having a contractual relationship with a business entity which is doing business with the City. However, an exemption is provided where "[t]he purchase or sale is for legal advertising in a newspaper, for any utilities service, or for passage on a common carrier." Section 112.313(12)(c), Florida Statutes. In CEO 85-2 and CEO 85-6, based on this exemption, we advised that city water department employees were not prohibited from performing work for businesses which were receiving water from the city. Similarly, here, we are of the opinion that this exemption would apply to the interim purchase of water from the City by the utility company which is your client for the rest area.

Accordingly, we find that no prohibited conflict of interest would be created were the private utility company which has retained you to contract to purchase water from the City on an interim basis for the rest area.

QUESTION 2:

Are you, a city council member, prohibited by Section 112.3143(3), Florida Statutes, from voting on the proposed purchase of water from the city by the utility company which has retained you?

This question is answered in the affirmative.

Regarding voting conflicts of interest, the Code of Ethics provides:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, 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. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one- acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes (1985).]

This provision prohibits you from voting on any measure which inures to the special gain of a principal by whom you are retained. We previously have advised that a client which has retained the services of an engineer is a principal by whom the engineer is retained. See CEO 85-20 and CEO 84-1. Therefore, you may not vote on the proposed contract between the City and your client utility company, and you must make the oral and written disclosures required by Sections 112.3143(3).

You also have inquired regarding the propriety of your participating in discussions regarding the proposed contract, as you feel that your professional qualifications and technical expertise were one reason for your election to office. It is clear that you are prohibited from representing your client before the City Council. See CEO 78-86 and CEO 77-126. However, we have recognized that an official may participate in discussions without doing so as a representative of a client. In these situations, a public official is subject to the general prohibition against corruptly using his official position to secure a special privilege, benefit, or exemption for himself or another. Therefore, we have advised that, as a general rule, a mayor may continue to preside at a city council meeting, and a water management district board member may participate in discussions, notwithstanding the fact that they would have a voting conflict regarding the measure under consideration. See CEO 76-200 and CEO 77-183.

Accordingly, we find that you are prohibited from voting on a contract between the City and the private utility company which has retained you.