CEO 90-34 -- April 26, 1990

CONFLICT OF INTEREST

COUNTY COMMISSIONER RETAINED BY FIRM

TREATING CONTAMINATED SOIL

To: Neal D. Bowen, County Attorney, Osceola County (Kissimmee)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a county commissioner to contract to provide services as an environmental consultant to a firm which processes soil to remove contaminants. Under the circumstances presented, the firm does not do business with and is not subject to the regulation of the county.

QUESTION:

Would a prohibited conflict of interest be created were a county commissioner to be retained as a consultant by a firm which processes soil to remove contaminants?

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

In your letter of inquiry you advise that Jim Swan, an Osceola County Commissioner, would like to work as a consultant to a firm which is engaged in the business of treating contaminated soil to eliminate pollutants. The firm does business within and outside of the County.

The Commissioner would serve as a consultant to the firm for environmental affairs. In particular, he would serve in the drafting of proposed regulations for the Department of Environmental Regulation which would concern the operation of soil treatment facilities. He would advise and assist the firm in complying with local, state, and federal regulations. The Commissioner would not be involved in ensuring the firm's compliance with Osceola County regulations and would not be involved in selling the firm's services or products.

You further advise that Osceola County has no particular environmental standards, procedures, or regulations governing the firm's process of removing contaminants from soil. The normal zoning and land use approvals required of any property use would appear to be the only regulation the County currently has over the process. You further state that the firm has no contracts with the County.

In regard to your question, Section 112.313(7)(a), Florida Statutes, provides:

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.

This provision would prohibit the Commissioner from having a contractual relationship with a business entity that either is doing business with or is subject to the regulation of the County. You have indicated that the firm is not doing business with the County. In addition, you state that the County does not regulate the described contaminant removal process and does not regulate the firm other than through zoning and land use regulations applicable to any property in the County. Nor have you brought to our attention any facts which would indicate that the Commissioner's involvement with the firm would create a continuing conflict or be an impediment to his public duties. Therefore, Section 112.313(7)(a) would not appear to prohibit this activity.

Section 112.3143(3), Florida Statutes, provides:

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.

You have advised that the Commissioner would abstain on any matter inuring to the special private gain of the firm.

Accordingly, we find that no prohibited conflict of interest would be created were the subject Commissioner to be employed by a firm which processes soil to remove contaminants both within and outside of the County, so long as the County continues to have no regulations governing the firm's process of removing contaminants from soil.