CEO 87-81 -- October 29, 1987

CONFLICT OF INTEREST

DEPARTMENT OF COMMUNITY AFFAIRS EMPLOYEE

SERVING AS CITY MANAGER

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

SUMMARY:

No prohibited conflict of interest exists under Section 112.313(7), Florida Statutes, where an employee of the Department of Community Affairs, Bureau of Local Resource Planning, has been appointed as a city manager. The Bureau is neither subject to the regulation of, nor doing business with, the City. Under the circumstances presented, the individual's employment with the Department would not create a continuing or frequently recurring conflict of interest or impede the full and faithful discharge of his duties as city manager.

QUESTION:

Does a prohibited conflict of interest exist where an employee of the Department of Community Affairs, Bureau of Local Resource Planning, has been appointed to serve as a city manager?

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

In your letter of inquiry you advise that .... is employed with the Department of Community Affairs, Division of Resource Planning and Management, Bureau of Local Resource Planning. You also advise that he has been appointed by the City Council of the City of Midway, a newly created municipality, to serve as its City Manager without pay. In the future, the City may wish to pay him for his services as City Manager.

The City is required to develop a comprehensive plan by 1991 which must be submitted for review to the Bureau of Local Resource Planning, Review and Criteria Section, within which the subject employee works. It is your understanding that a senior administrator will have to sign-off on the review of the City's comprehensive plan, rather than the subject employee, who is not in an administrative or policymaking position.

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 our view, the subject employee is a public officer by virtue of his appointment as City Manager for the City, regardless of whether he receives any compensation for his services. The City Charter, Chapter 86-471, Laws of Florida, provides that the City Manager shall be "the chief administrative officer of the city" and provides for the powers and duties of the City Manager. Based upon similar responsibilities, the Attorney General in AGO 86-11 found that the City Administrator of the City of Longwood is a public officer. See also State v. Glidewell, 311 So.2d 126 (Fla. 2nd DCA 1975), in which the Court found that the City Manager for the City of Leesburg was a "municipal official," and AGO 80-97, in which the Attorney General opined that the City Manager of the City of Pensacola, as the chief administrative officer of the City, was a public officer. Further, compensation is not an indispensable element of public office. 9 Fla. Jur. 2nd Civil Servants and Other Public Officers and Employees, Section 5.

Therefore, the question we must decide under Section 112.313(7)(a), Florida Statutes, is whether the subject employee's employment with the Department of Community Affairs, Bureau of Local Resource Planning, presents a conflict of interest with the duties of a city manager which would be prohibited by the language in that section. It is clear that the Bureau is not subject to the regulation of the City. Nor, under the circumstances presented, does it appear that the Bureau could be said to be doing business with the City. Finally, we find no basis to conclude that his employment with the Bureau would create a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of his duties as City Manager. In CEO 83-61, we concluded that the subject employee could serve on a regional planning council, noting that his experience with a bureau of the Department of Community Affairs could benefit the planning council. Similarly, here, it could be said that his knowledge and experience could benefit the City. Although the Department may conclude that his responsibilities as City Manager may conflict with his duties as an employee of the Department, such a potential conflict of interest is not a matter addressed by the language of the statute as currently written.

Accordingly, we find that no prohibited conflict of interest exists where the subject employee of the Department of Community Affairs, Bureau of Local Resource Planning, has been appointed to serve as City Manager, whether with or without compensation.