CEO 87-69 -- September 16, 1987
CONFLICT OF INTEREST
CITY AIRPORT MANAGER SERVING AS FIXED BASE OPERATOR
AND MEMBER OF AIRPORT ADVISORY BOARD
To: Mr. Thomas C. Palmer, City Attorney, City of Sebastian
SUMMARY:
No prohibited conflict of interest exists under Section 112.313(7), Florida Statutes, where a city airport manager is a fixed base operator at the airport when it is required or permitted by ordinance. The prohibition in Section 112.313(10), Florida Statutes, against an employee of a city serving as a member of the governing board of the city would not be applicable where the airport manager is an ex officio member of the airport advisory board, as the airport advisory board is not the governing board of the city. A prohibited conflict of interest would exist were a fixed base operator or tenant at the airport to be a member of the airport advisory board under the provisions of Section 112.313(7), Florida Statutes, as the individual would have an employment relationship with a business entity which is doing business with his agency by virtue of the lease with the city. The city council may waive this conflict of interest by following the provisions of Section 112.313(12), Florida Statutes. However, the voting conflict provisions of Section 112.3143, Florida Statutes, would be applicable for any matters addressed by the airport advisory board.
QUESTION 1:
Does a prohibited conflict of interest exist where the airport manager of a city airport also is the fixed base operator at the airport?
This question is answered in the negative.
In your letter of inquiry and in a telephone conversation with our staff you have advised that Mr. John Van Antwerp serves as the Airport Manager of the City of Sebastian and also is a fixed base operator at the City Airport on land under lease from the City. You question whether this is a violation of the Code of Ethics.
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).]
In a prior opinion, CEO 77-169, we found that this provision would be violated where a director of county airports was also an officer of a corporation which had entered into leases with the county to serve as fixed base operator at two county airports. Based on the rationale of this opinion, a prohibited conflict of interest apparently would be present in this case.
However, we note that the City Code provides that the Airport Manager "shall be an existing fixed base operator or another qualified person." Under these circumstances, the following subsection of Section 112.313(7), Florida Statutes, is applicable:
This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance. [Section 112.313(7)(b), Florida Statutes (1985).]
Therefore, because the city by ordinance requires or permits the Airport Manager to be a fixed base operator, the prohibition of Section 112.313(7)(a) does not apply here.
Accordingly, we find that no prohibited conflict of interest exists where the Airport Manager of the City of Sebastian airport also is the fixed base operator at the airport.
QUESTION 2:
Does a prohibited conflict of interest exist where the airport manager of the city airport serves as an ex officio member of the Airport Advisory Board?
This question also is answered in the negative.
You advise that a City ordinance requires the Airport Manager to sit as an ex officio (non-voting) member of the Airport Advisory Board. Under the ordinance, the Board has advisory authority in matters relating to "construction, improvement, maintenance, equipment, operation and regulation of the airport, including submission of proposed leases, financial and funding programs, and changes to existing policies and procedures of the operation of the airport." The City Council, upon receiving the Advisory Board's recommendations, has final approval on any actions taken.
Section 112.313(10)(a), Florida Statutes, provides:
EMPLOYEES HOLDING OFFICE. -- No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his employer while, at the same time, continuing as an employee of such employer.
The intent of this section is to prohibit a public officer from holding an employment position which is subject to the supervision of his public office. This provision is not violated here because the governing body which employs the Airport Manager is the City Council. Although the Board in its role of advising the Council is considered part of the City Council for purposes of determining a Board member's "agency" under the Code of Ethics, any decisions made with regard to the Airport Manager's employment, salary, and duties are made by the City Council.
Nor do we find that the Airport Manager's interests would conflict with his responsibilities as an ex officio member of the Airport Advisory Board to such a degree as to be prohibited by Section 112.313(7), Florida Statutes. Although the Advisory Board may consider matters affecting the Airport Manager, the Airport Manager serves only as an ex officio (non-voting) member of the Board. In addition, we note that the ordinance which prescribes the membership of the Board expressly provides for the ex officio membership of the Airport Manager.
Accordingly, we find that no prohibited conflict of interest exists where the Airport Manager serves as an ex officio member of the Airport Advisory Board.
QUESTION 3:
Would a prohibited conflict of interest be created were a fixed base operator or other tenant at the airport to be a member of the Airport Advisory Board, if that person is not the Airport Manager and is not a member of the City Council?
This question is answered in the affirmative.
The Sebastian City Ordinances require that seven voting members and one alternate member be appointed by the City Council to the Airport Advisory Board. Ex officio members include the Airport Manager and one member of the City Council. The ordinances in no way permit or require the Board members to be tenants or fixed base operators of the airport, other than the Airport Manager.
We find this situation to be analogous to CEO 87-23, in which the Commission found a prohibited conflict of interest to exist where an officer of a general contracting firm doing business with a school board served as a member of the school board's minority business enterprise advisory committee. Here, the fixed base operator or tenant would have an employment relationship with a business entity which is doing business with his agency, the City, by virtue of a lease agreement. As we noted in CEO 87-23, such a situation would violate Section 112.313(7)(a), Florida Statutes.
However, as we advised in CEO 87-23, the exemption for advisory board members provided in Section 112.313(12), Florida Statutes, could be utilized by the City Council to allow such individuals to serve on the Airport Advisory Board. This exemption provides:
EXEMPTION. -- 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.
If the City Council chooses to put this provision into effect for a particular member of the Airport Advisory Board, it should be noted that the provisions of Section 112.3143, Florida Statutes, concerning voting conflicts still would apply to actions taken by the Advisory Board member.
Accordingly, we find that a prohibited conflict of interest would be created were a fixed base operator or other tenant at the airport, who is not the Airport Manager or a member of the City Council, to be a member of the Airport Advisory Board unless the requirements of the exemption contained in Section 112.313(12), Florida Statutes, are met.