CEO 88-20 -- March 16, 1988

CONFLICT OF INTEREST; VOTING CONFLICT

CITY COMMISSIONER EMPLOYED BY SCHOOL DISTRICT;

CITY COMMISSIONER EMPLOYED BY NONPROFIT ORGANIZATION

RECEIVING IN-KIND SERVICES FROM CITY

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

SUMMARY:

No prohibited conflict of interest exists under Section 112.313(7), Florida Statutes, where a city commission member is employed by the local school district. Under the circumstances presented, the school district is not doing business with or regulated by the city, and employment with the school district would not create a continuing or frequently recurring conflict with the duties of a city commissioner. A city commissioner is not required by Section 112.3143, Florida Statutes, to abstain from voting on matters affecting the school district which employs her or to file any disclosure following votes on matters affecting the school district.

No prohibited conflict of interest exists under Section 112.313(7), Florida Statutes, where a city commissioner is employed as executive director of a nonprofit corporation which stages a circus parade requiring in-kind services to be provided by the city's police and public works departments. Under the circumstances presented, the nonprofit corporation is not doing business with the city. The commissioner is not prohibited by Section 112.3143, Florida Statutes, from voting on the approval of a city budget containing funding for in-kind services in support of the circus parade, given the amount of funds involved, the apparent number of matters to be funded within the City budget, and the particular types of services to be provided.

QUESTION 1:

Does a prohibited conflict of interest exist where a city commissioner is employed as a school teacher by a county school board which occasionally brings matters before the city commission?

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

Through your letter of inquiry and subsequent correspondence we have been advised that .... serves as a member of the Sarasota City Commission and is employed as a school teacher by the Sarasota County School Board. You advise that on occasion the School Board appears before the City Commission. Recent examples of these types of matters include a request for the placing of a stop light at an intersection adjacent to a school and a request for an encroachment permit which would allow a school bus loading canopy on part of a city right-of-way. Both matters resulted in the City Commission making an appropriate motion and voting to grant or deny the School Board's request. The subject City Commissioner voted on these matters.

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).]

We previously have advised that this provision would not prohibit a school district employee from serving on a board of county commissioners (CEO 76-83), a school board member from being employed as a county building inspector (CEO 76-59), or a county deputy comptroller from serving on a school board (CEO 82-3).

Under the circumstances presented, it does not appear that the School Board is doing business with the City Commission. Nor do we conclude that the School Board is "subject to the regulation" of the City Commission. See Commission on Ethics Complaint No. 79-74, In re John Zerwick, 2 FALR 1097-A (Aug. 25, 1980), affirmed, Zerwick v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982). Here, it does not appear that the School Board could be considered to be regulated to a greater extent or degree than any other property owner within the City. Finally, you have presented no circumstances which would indicate that the Commissioner's employment as a school teacher presents a continuing or frequently recurring conflict of interest or impedes the full and faithful discharge of her public duties as a Commissioner.

Accordingly, we find that no prohibited conflict of interest exists where the subject City Commissioner is employed by the District School Board as a school teacher.

QUESTION 2:

Does a voting conflict of interest exist under Section 112.3143, Florida Statutes, where a city commissioner who is a school teacher votes on matters affecting the school district which employs her?

This question is answered in the negative.

Regarding voting conflicts of interest for elected local officials, the Code of Ethics provides in relevant part:

Except as provided in subsection (3), no public officer is prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure which inures to his special private gain or the special gain of any principal by whom he is retained shall within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143(2)(a), Florida Statutes (1987).]

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one- acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes (1987).]

Section 112.3143(2)(a) provides that unless a public official is prohibited by Section 112.3143(3) from voting on a particular matter, the official is not prohibited from voting on that matter. Under Section 112.3143(2)(a), if the official does vote under circumstances in which he has a voting conflict of interest, the official has 15 days within which to file a memorandum of voting conflict. We previously have advised that a public official is not presented with a voting conflict of interest under Section 112.3143(2)(a) when voting on matters affecting the public agency which employs him. See CEO 86-86, in which we advised that no voting conflict of interest would be created were a member of the Florida Developmental Disabilities Planning Council to vote on the distribution of Federal funds to his employer, the Department of Health and Rehabilitative Services.

Section 112.3143(3) addresses the question of when is an official prohibited from voting on a matter and what he should do if he is prohibited from voting. However, this subsection expressly provides that an official is not prohibited from voting on a measure which inures to the special gain of an "agency" by which the official is retained. Therefore, in these types of situations the official is not prohibited from voting but, rather, is governed by the general rule of Section 112.3143(2)(a).

In the present situation, Section 112.3143(3) does not prohibit the subject City Commissioner from voting on matters affecting the School District which employs her, as the School District is an "agency," as that term is defined in Section 112.312(2), Florida Statutes. Under the general rule of Section 112.3143(2)(a), as interpreted in CEO 86-86, the Commissioner may vote on matters affecting the School District without being presented with a voting conflict of interest requiring the filing of a memorandum of voting conflict. Please note that appointed officials are governed by Section 112.3143(2)(b), Florida Statutes, in matters involving voting conflicts and should not follow the principles set forth here. Further, community redevelopment agency commissioners and officers of independent special tax districts elected on a one-acre, one-vote basis should follow the rules set forth in CEO 86-13.

Accordingly, we find that no voting conflict of interest is created where the subject City Commissioner votes on matters affecting the School District which employs her as a school teacher.

QUESTION 3:

Does a prohibited conflict of interest exist where a city commissioner is employed as executive director of a nonprofit corporation which sponsors a parade in the city, in connection with which the city's police and public works departments provide services?

This question is answered in the negative, under the circumstances presented.

Through your letter of inquiry and subsequent correspondence we have been advised that .... serves as a member of the Sarasota City Commission and has been employed as executive director of a nonprofit corporation which stages an annual circus week, with the principal event being a circus parade. You also advise that certain community organizations within the City, such as the nonprofit corporation, request City support for their community activities. This support normally consists of special services provided by the police and public works departments. Annually, the City administration anticipates requests for these services and provides for the expense of the in-kind services as part of the annual budget.

While preparing the annual budget, the City Commission holds workshops to discuss details of the budget to allow the Commissioners to inquire into particular portions of departmental budgets. The Commission is advised that they may discuss the matters brought to them at a workshop but may not vote or otherwise make final decisions at that time. During the course of a workshop on the fiscal year 1987-1988 budget, the Commission discussed budgeting for in-kind services in support of a number of community activities, including the activities of the nonprofit circus corporation. During the workshop, the subject Commissioner inquired whether the City had received a request for services from the corporation. Subsequently, the City Commission held public hearings and formally adopted the City's budget, totaling approximately $26 million. The budget is adopted through a roll call vote for or against the budget ordinance at two separate meetings, although no separate votes are taken upon different sections of the proposed budget. Within the budget, funding for the cost of in-kind services in support of community events such as circus week is provided as part of the budget of each department. The subject Commissioner voted favorably on the budget ordinance.

In-kind services provided by the Public Works Department include supplying and removing barricades, assisting in certain traffic control functions, and cleaning up following the parade. The Police Department provides officers for traffic and crowd control. There is no formal process for requesting such services from the City, and no formal written contract or agreement is entered into by the City. The concerned department heads and the City Manager determine the level of services to be provided based upon past practices. The Police Department budgeted $7,000, and the Public Works Department budgeted $2,000 for circus week, although neither budget contains any specific reference to circus week; all figures pertaining to in-kind services are contained within various category line items within the Departments' budgets.

Section 112.313(7)(a), Florida Statutes, quoted above in response to your first question, prohibits a public officer from being employed by a business entity which is doing business with his agency. Under the circumstances presented, however, we find that the nonprofit corporation employing the subject Commissioner is not doing business with the City. In previous opinions we have advised that a business entity and an agency are not "doing business" within the contemplation of this provision where one would not have a cause of action against the other in the event of default on the agreement, or where the transaction is merely a donation of property. See CEO 85- 7, CEO 82-13, and CEO 80-87. Here, there is no formal, written contract or agreement and it does not appear that there is any obligation or consideration due from the nonprofit organization to the City. Rather, it appears that the City is recognizing the organization's right to hold its activities and the City's corresponding obligation to take reasonable steps to assure crowd and traffic control; in effect, the City is donating limited services to assist activities which the City believes to have a legitimate public purpose.

Accordingly, we find that no prohibited conflict of interest exists where the subject City Commissioner is employed as executive director of a nonprofit corporation which sponsors activities for which the City Police and Public Works Departments provide services.

QUESTION 4:

Is a city commissioner prohibited by Section 112.3143, Florida Statutes, from voting on the approval of a city budget which includes funding for in-kind services to be provided in connection with activities of the nonprofit corporation which employs the city commissioner?

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

Except with respect to appointed officials, Section 112.3143, Florida Statutes, does not limit a public officer's participation in discussion on matters relating to his or his employer's interests. See CEO 84-31, CEO 77-183, and CEO 76-200. However, Section 112.3143(3), quoted above in response to your second question, prohibits a local official from voting on a measure which inures either to his special private gain or to the special gain of a principal by whom he is retained.

Under the circumstances presented, it does not appear that any matter within the City budget could be said to inure to the special gain of the subject Commissioner. Nor do we find that the City budget ordinance inured to the special gain of the Commissioner's employer. We have advised that whether a particular measure inures to the "special" gain of an officer or his principal will turn in part on the size of the class of persons who stand to benefit from the measure; where the class of persons is large, a special gain will result only if there are circumstances unique to the officer or his principal under which they stand to gain more than the other members of the class. See CEO 77-129.

Here, the vote related to the entire City budget of approximately $26 million. The amount included in the budget for in-kind services to be provided in conjunction with circus week totaled only $9,000 of the total budget. Given these comparative amounts, the apparent number of matters to be funded within the City budget, and the particular types of services to be provided here, we conclude that the City budget cannot be said to have inured to the special gain of the subject Commissioner's employer.

Accordingly, we find that the subject Commissioner was not prohibited from voting on a City budget which included within its departmental budgets funds for in-kind services to be provided in support of the activities of the Commissioner's employer.