CEO 87-21 -- April 23, 1987

CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST

COMMUNITY COLLEGE TRUSTEE PART OWNER OF

TELEVISION STATION PURCHASING CHANNEL NUMBER

FROM EDUCATIONAL TELEVISION STATION

To: Mr. W. M. Gillespie, Attorney, New Smyrna Beach

SUMMARY:

No prohibited conflict of interest would be created were a community college trustee, whose college is part of a consortium which operates an educational television station, to be an investor in a commercial television station which purchases the station number from the educational station. Although Section 112.313(7), Florida Statutes, prohibits a trustee from having any employment or contractual relationship with a business entity which is doing business with the community college, here the commercial television station would be doing business with the nonprofit corporation created by the consortium, rather than with the community college. However, the trustee should abstain from voting on the proposed swap of station numbers between the educational station and the commercial station and should make the appropriate disclosures required under Section 112.3143(3), Florida Statutes.

QUESTION 1:

Would a prohibited conflict of interest be created were a community college trustee, whose college is part of a consortium which operates an educational television station, to be an investor in a commercial television station which purchases the station number from the educational station?

This question is answered in the negative.

In your letter of inquiry you advise that Sally I. Gillespie serves as a member of the Board of Trustees of the Daytona Beach Community College. The College has joined a consortium of five educational groups which have formed a nonprofit corporation to operate an educational television station. Representatives from each educational group serve on the board of directors of the corporation.

You also advise that the Trustee is a member of a private group of investors which has been granted a license by the FCC to operate a commercial television station in the same general coverage area. During the licensing process for the station, the appropriate disclosure was made to the FCC regarding this situation. Since the Trustee does not have any direct role in the management or operation of the educational channel, the FCC did not find a conflict to exist. Recently, however, the commercial station has been approached by a television broker with an offer to purchase the station if the broker can swap its station number for the more desirable station number of the educational channel. If this proposal is presented to the educational corporation, it is likely that the consortium's board would seek approval or disapproval from each of its members before acting. Therefore, the matter would come before the Board of Trustees of the Community College.

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 the Trustee from having any employment or contractual relationship with a business entity which is doing business with the Community College, her "agency" as that term is defined in Section 112.312(2), Florida Statutes. Here, however, the Community College is part of a consortium which has formed a nonprofit corporation to operate the educational television station. The commercial television station would be doing business with this nonprofit corporation, rather than with the Community College.

Section 112.313(7)(a), Florida Statutes, also prohibits a public officer from having any employment or contractual relationship that would create a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of his public duties. Under the circumstances presented, however, we do not view the Trustee's participation as an investor in the commercial television station to create a continuing or frequently recurring conflict or to be so substantial as to impede the full and faithful discharge of her public duties as a Trustee.

Accordingly, we find that no prohibited conflict of interest would be created were the commercial television station in which the Trustee has invested to purchase the station number of the educational television station.

QUESTION 2:

Is the community college trustee prohibited by Section 112.3143, Florida Statutes, from voting on the proposed swap of station numbers between the educational station and the commercial television station in which she has invested?

This question is answered in the affirmative.

In your letter of inquiry you advise that if the Board of Trustees is asked to vote on the proposed swap of station numbers between the educational television station and the commercial television station, the Trustee feels that a conflict would exist. Therefore, you are inquiring how the Trustee should proceed in declaring the conflict and refraining to take part in any decision which the Board of Trustees might be asked to make.

Section 112.3143(3), Florida Statutes (1985), 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.

This provision requires a local public officer to abstain from voting on any measure which inures to her special private gain. Under the circumstances presented, it is clear that the proposed swap of station numbers would benefit the investors in the commercial television station. Therefore, the Trustee would be required to abstain from voting if the question is presented to the Community College Board of Trustees. In addition, Section 112.3143(3) would require the Trustee, prior to the vote being taken, to publicly announce at the meeting the nature of her interest in the matter and to disclose the nature of her interest within fifteen days after the vote occurs in a memorandum filed with the person responsible for recording the minutes of the meeting. This disclosure may be made on Commission on Ethics Form 8B, Memorandum of Voting Conflict.

This question is answered accordingly.