CEO 87-60 -- July 30, 1987

CONFLICT OF INTEREST

CITY ECONOMIC DEVELOPMENT COUNCIL MEMBER'S

FIRM PREPARING STUDY FOR COUNCIL

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

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(3) and (7), Florida Statutes, were the firm of a member of a city economic development council to contract to prepare a study for the council. However, Section 112.313(12), Florida Statutes, authorizes the appointing official of an advisory body such as the council to waive the conflict of interest after public hearing and upon full disclosure.

QUESTION:

Would a prohibited conflict of interest be created were the firm of a member of a city economic development council to contract to prepare a study for the council?

Your question is answered in the affirmative, subject to the exception noted below.

In your letter of inquiry you advise that .... serves as a member of the Economic Development Council of the City of Jacksonville. Pursuant to the executive order of the Mayor which created the Council, the Council is responsible for advising the Mayor on creating new job-producing activities and expanding existing businesses; coordinating private and public efforts to promote economic development; developing an economic development plan; studying and recommending ways for government to facilitate licensing and permitting processes; and serving as the overall economic development program committee for the City.

You also advise that the Council operates through ad hoc committees. The Health Economics Committee of the Council has issued a request for proposals for companies interested in preparing a health care and medical related industries study. The subject Council member does not serve on this Committee and will have no participation in the selection process whatsoever. However, the firm of which he is president has submitted a proposal to prepare this study. According to the Mayor's Economic Development Coordinator, the study will be funded in equal parts by the Council and by the local private industry council.

The Code of Ethics for Public Officers and Employees provides in relevant part:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1985).]

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).]

Section 112.313(3) prohibits a public officer's firm from selling services to his agency. Section 112.313(7)(a) prohibits a public officer from being employed by a business entity which is doing business with his agency. Under Section 112.313(1), Florida Statutes, persons serving on advisory bodies are considered to be public officers for purposes of these provisions.

It is clear, therefore, that these provisions of the Code of Ethics would prohibit the subject Council member's firm from contracting to prepare the study for the Council. However, the following exemption would permit his firm to do business with the Council:

The requirements of subsections (3) and (7) as they pertain to persons serving on advisory boards may be waived in a particular instance by the body which appointed the person to the advisory board, upon a full disclosure of the transaction or relationship to the appointing body prior to the waiver and an affirmative vote in favor of waiver by two-thirds vote of that body. In instances in which appointment to the advisory board is made by an individual, waiver may be effected, after public hearing, by a determination by the appointing person and full disclosure of the transaction or relationship by the appointee to the appointing person. [Section 112.313(12), Florida Statutes (1985).]

In previous opinions CEO 77-112 and CEO 79-35 we have advised that boards with powers and duties similar to those of the Economic Development Council are advisory bodies. Therefore, as members of the Council are appointed by the Mayor, the Mayor may waive the restrictions of Sections 112.313(3) and (7), Florida Statutes, as provided in this exemption. Please note that the disclosure required by this provision should be made on CE Form 4A, Disclosure of Business Transaction, Relationship, or Interest.

Accordingly, we find that a prohibited conflict of interest would be created were the firm of the subject Economic Development Council member to contract to prepare a study for the Council, unless a waiver is effected as provided in Section 112.313(12), Florida Statutes.