CEO 88-13 -- March 16, 1988

CONFLICT OF INTEREST

CITY DEPARTMENT OF LEISURE SERVICES EMPLOYEES WORKING

AS SPORTS OFFICIAL AND RECREATION PROGRAM INSTRUCTOR

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

SUMMARY:

No prohibited conflict of interest would be created were the deputy director of a city leisure services department to be employed part-time as a sports official with a local sports officiating organization which has contracted with the city to provide officials for city- sanctioned sports events on city-owned fields. Although Section 112.313(7), Florida Statutes, prohibits a public employee from having any employment with a business entity doing business with his agency, Section 112.313(12)(e), Florida Statutes, exempts transactions where, as here, the private employer is the sole source of supply.

No prohibited conflict of interest exists where an individual who has contracted with a city leisure services department to serve as a recreation program instructor becomes employed by the department as a clerk typist. Although a public employee is prohibited by Section 112.313(3), Florida Statutes, from acting in a private capacity to sell services to her agency, that section "grandfathers-in" contracts entered into prior to public employment. In addition, Section 112.313(12)(f), Florida Statutes, exempts transactions which do not exceed $500 in total, as would be the case here.

QUESTION 1:

Would a prohibited conflict of interest be created were the deputy director of a city leisure services department to be employed part-time as a sports official with a local sports officiating organization which has contracted with the city to provide officials for city- sanctioned sports events on city-owned fields?

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

Through your letter of inquiry and telephone conversations with our staff, we have been advised that .... is employed by the City of Palm Bay Leisure Services Department as Deputy Director (Assistant Department Director). He would like to be employed part-time as a paid sports official with a local sports officiating organization.

The organization has entered into a year-long contract with the City to provide sports officials at City-sanctioned sports events on City-owned sports fields. Under the contract the organization is paid on a monthly basis depending on the number of games held and the particular sports involved. The Department is responsible for soliciting proposals for the officiating service, selecting and awarding the contract, and administering the contract. Officials working for the organization are paid on a per game basis. As Deputy Director, the employee does not make the final decision on selection, retention, or compensation for the contract. However, the employee provides recommendations on virtually all aspects of the Department, including the Department's budget.

Finally, you advise that there are two sports officiating organizations which currently operate in the county. One provides services in the south area of the county, in the area of the City, and the other operates in the central and north areas of the county.

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 (1987).]

This provision prohibits a public employee from being employed by a business entity which is doing business with his agency, a prohibition which clearly would be applicable here.

However, the Code of Ethics also provides an exemption to this prohibition where

[t]he business entity involved is the only source of supply within the political subdivision of the officer or employee and there is full disclosure by the officer or employee of his interest in the business entity to the governing body of the political subdivision prior to the purchase, rental, sale, leasing, or other business being transacted. [Section 112.313(12)(e), Florida Statutes (1987).]

Here, the officiating organization is the sole source of supply for this type of service within the City. The exemption requires disclosure to the governing body of the City prior to the transaction of business, for which purpose we have promulgated Commission on Ethics Form 4A, Disclosure of Business Transaction, Relationship or Interest. As the Deputy Director would have had no employment with the officiating organization at the time of the contract with the City, disclosure prior to that transaction would not have been appropriate. Therefore, we would suggest that if the Deputy Director becomes employed by the organization he should make disclosure of his employment to the governing body of the City at the time of his employment. If he remains employed by the organization at the time the contract is renewed, he should make this disclosure again prior to the time the contract is awarded.

Accordingly, under the circumstances presented we find that no prohibited conflict of interest would be created were the subject Deputy Director to be employed part-time as a sports official with the sports officiating organization which has contracted with the City to provide officials for City-sanctioned sports events.

QUESTION 2:

Does a prohibited conflict of interest exist where an individual who has contracted with a city leisure services department to serve as a recreation program instructor becomes employed by the department as a clerk typist?

Under the circumstances presented, this question also is answered in the negative.

Through your letter of inquiry and telephone conversations with our staff, you have advised that .... has contracted with the Leisure Services Department for a number of years to serve as a recreation program instructor in charm and modeling at the City's community center. You advise that she now has been hired by the Department to work as a full-time clerk typist for the Director of the Department.

The Department is responsible for selecting and retaining recreational program instructors, determining their compensation, and executing and administering contracts with the instructors. The Director has the final authority in these matters. You advise that several of these recreation programs are offered each year in five to six week sessions. The City advertises the classes, registers participants, collects a registration fee of $18 per person, and pays the subject instructor 70 percent of the total amount collected for the session. You advise that the average class size for this program has been 20 persons but that this figure has varied from 8 to 35 participants. The contract runs for no set period of time, but continues from one session to the next, you advised.

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 (1987).]

This provision prohibits a City employee from acting in a private capacity to sell any services to the City.

However, Section 112.313(3)(d) "grandfathers-in" contracts which are entered into prior to the beginning of public employment. Therefore, as the subject employee has provided recreation program instructional services under what appears to be a continuing contract for several years, we find that she would not be prohibited from continuing to provide those services so long as the terms of the contract are not varied. We also note that Section 112.313(12)(f), Florida Statutes, exempts transactions where the total amount does not exceed $500. It also appears that this exemption would apply, as the subject employee has not received more than $500 per session for her instructional services.

Accordingly, we find that no prohibited conflict of interest exists under the circumstances presented where the subject clerk typist with the Leisure Services Department provides recreation program instructional services under a contract with the Department.