CEO 88-67 -- October 19, 1988

CONFLICT OF INTEREST

VILLAGE COUNCIL MEMBER EMPLOYED BY VILLAGE

AS SCHOOL CROSSING GUARD

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

SUMMARY:

A village's school crossing guard, who is paid by specially designated county funds, is an employee of the village where she is hired by the village and her paycheck is issued by the village. Therefore, continuing employment as the municipality's school crossing guard while simultaneously serving as a village council member would violate Section 112.313(10)(a), Florida Statutes. CEO 85-38 is referenced.

QUESTION:

Are you, a village council member, prohibited from serving as a school crossing guard for the village when the latter position is paid from specially designated county funds?

Your question is answered in the affirmative.

In your letter of inquiry and in subsequent telephone conversations with our staff, you have advised that you are employed as a school crossing guard for the Village of Virginia Gardens, having served in this position since its inception in 1986. The position is paid by the Village from specially designated funds received from Dade County. You further advise that if all of the funds given to the Village by the County are not required by the school crossing guard program, the Village must return the unused funds to the County. You stated that you were hired as school crossing guard by the Village of Virginia Gardens and that the Village of Virginia Gardens issues your paycheck. You also stated that you have an employee number printed on your paycheck which is assigned by the Village. You stated also that you believe you are an employee of the Village.

According to your letter, you were elected to the position of Councilwoman for the Village in September of 1987. Before you were elected you requested an opinion from the Village's attorney as to whether you could continue to be employed as the school crossing guard. The attorney advised that since the funds paying the position of school crossing guard were derived from undesignated ticket sales from the County and did not involve tax dollars, he did not believe you were prohibited from continuing in that position.

We respectfully disagree with this position. Section 112.313(10)(a), Florida Statutes, states:

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.

In our opinion, the critical question is not where the salary funds originated, but whether you are an employee of the Village, although the source of the funds may be an important factor in determining who your employer may be. In this case, however, you have advised that you have an assigned employee number and that your paycheck is issued by the Village. You are also a member of the governing board of the same municipality which is your employer. Therefore, we are of the opinion that continuing to serve as the school crossing guard while also serving on the Village Council would be in violation of Section 112.313(10)(a), Florida Statutes. For a similar example, see CEO 85-38, in which we advised that a city commissioner could not also serve as city building official.

Accordingly, we find that a prohibited conflict of interest exists where you serve both as a member of the Village Council and as school crossing guard for the Village.