CEO 87-46 -- June 11, 1987

CONFLICT OF INTEREST; VOTING CONFLICT

HOUSING AUTHORITY COMMISSIONER SERVING AS

PRESIDENT OF TENANTS' ASSOCIATION

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

SUMMARY:

No prohibited conflict of interest would be created were the noncompensated president of a tenants' association which is a nonprofit corporation to serve as a housing authority commissioner. Section 112.313(7)(a), Florida Statutes, would not be violated as noncompensated service as an officer of a nonprofit corporation does not constitute an employment or contractual relationship. Furthermore, the housing authority commissioner is not prohibited by Section 112.3143(3), Florida Statutes, from voting to enter into a contract with the nonprofit corporation, as the measure would affect the commissioner only insofar as she is one of a class of tenants, and as the nonprofit corporation is not a principal by whom she is retained. CEO's 77-55, 80-32, 82-10, 83-70, 85-5, 85- 62 and 87-27 are referenced.

QUESTION 1:

Does a prohibited conflict of interest exist where the noncompensated president of a nonprofit tenants' association serves as a housing authority commissioner?

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

In your letter of inquiry you advise that .... is the President of the Tampa Housing Authority Tenants' Association, Inc., a nonprofit corporation. She receives no compensation in this position. She also recently was appointed to the Board of Commissioners of the Tampa Housing Authority. The Housing Authority may allocate up to $3 per dwelling unit to a recognized tenant council for the council's use in promoting tenant activities, provided that the Authority complies with certain conditions contained in HUD directives. Allocation of the funds is made pursuant to a written contract between the Housing Authority and the tenant council.

Section 421.05, Florida Statutes, requires that at least one Housing Authority Commissioner be an individual who currently is residing in a housing project or who is a person of low income receiving a rent subsidy through a program administered by the Authority. The subject Commissioner meets that statutory requirement. You question whether a prohibited conflict of interest would be created if the Authority entered into a contract with the Tenants' Association for the administration of dwelling unit allocations.

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 a public official from having any employment or contractual relationship with a business entity which is doing business with his agency. However, in previous opinions we have advised that noncompensated service as an officer or director of a nonprofit corporation does not constitute an employment or contractual relationship. See CEO 77-55, CEO 80-32, CEO 82-10, and CEO 83-70.

Accordingly, we find that no prohibited conflict of interest exists where the subject Housing Authority Commissioner serves as President of the tenants' association.

QUESTION 2:

Is a housing authority commissioner prohibited by Section 112.3143, Florida Statutes, from voting on a contract with a tenants' association which she serves as president without compensation?

This question also is answered in the negative.

The Code of Ethics also 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).]

Under this provision, a local public officer is prohibited from voting upon a measure which inures to her special private gain and from knowingly voting on a measure which inures to the special gain of a principal by whom she is retained.

The question of whether a particular measure will result in the Commissioner's "special" gain turns in part on the size of the class of persons who stand to benefit from the measure. See CEO 85-5, CEO 85-62, and CEO 87-27. Under the circumstances presented it appears that all tenants in programs funded by the dwelling unit allocations would benefit indirectly from the measure. Therefore, we conclude that any such benefits received would not constitute "special" private gain on the part of the Commissioner. Additionally, we previously have advised that a public officer does not have a voting conflict of interest under this provision when voting on matters affecting a nonprofit organization which he serves as an officer or director without compensation, as the official is not "retained" by the organization. See CEO 83-70.

Accordingly, we find that the Commissioner is not prohibited from voting on such a contract with the nonprofit corporation.