CEO 75-210 -- December 15, 1975

CONFLICT OF INTEREST

CITY COMMISSIONER EMPLOYEE OF AND OFFICER IN BANK MAKING LOANS TO CITY

To: John D. Lane, City Commissioner, Eustis

Prepared by: Bonnie Johnson

SUMMARY:

A prohibited conflict of interest would be created were a bank, the senior vice president of which serves on a city commission, to lend money to that city. Reference is made to CEO 75-195. Both s. 112.313(3), F. S., prohibiting business transactions between one's agency and a business of which he is an officer, and s. 112.313(7), dealing with conflicting employment, bar such loans. Both sections would be violated even if the officer were to abstain from voting on the loan contract, inasmuch as membership on the city commission is deemed to constitute acting in one's official capacity for purposes of s. 112.313(3). See CEO 75-201.

QUESTIONS:

1. Would a prohibited conflict of interest exist were the First National Bank and Trust Company of Eustis, of which I am senior vice president, to lend money to the City of Eustis while I am a member of the city commission?

2. Would a prohibited conflict of interest exist were the City of Eustis to borrow money from First National Bank and Trust, of which I am senior vice president, if, in my capacity as city commissioner, I abstained from voting on the matter?

Question 1 is answered in the affirmative.

Enclosed please find a copy of a previous opinion of this commission, CEO 75-195, wherein we rule that s. 112.313(7), F. S., as amended by Ch. 75-208, Laws of Florida, dealing with conflicting employment, prohibits such loans. Also, s. 112.313(3), F. S., as amended by Ch. 75-208, prohibits a public officer from acting in his official capacity to purchase goods or services from a business entity of which he is an officer. Enclosed is a copy of CEO 75-201, based on that provision, the rationale of which is equally applicable to one who is an officer in a bank which transacts business with the public agency in which he is an officer.

Question 2 is also answered in the affirmative.

Section 112.313(7), F. S., cited in the enclosed CEO 75-195, prohibits a public officer from holding employment with any business entity doing business with the officer's agency. The statute does not exclude from this prohibition those transactions upon which the officer did not vote. Further, we are of the view that membership on the city commission constitutes acting in one's official capacity for purposes of s. 112.313(3). See CEO 75-201, enclosed. Thus, you will be acting in your official capacity whether you vote or whether you abstain from voting.

Accordingly, a conflict of interest would be created were the city to borrow from First National Bank so long as you are serving on the city commission.