CEO 90-61 -- September 7, 1990

CONFLICT OF INTEREST

STATE BOARD OF ACCOUNTANCY MEMBER SERVING ON COMMITTEES OF FLORIDA INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS

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

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(11), Florida Statutes, were a member of the State Board of Accountancy to serve on various committees of the Florida Institute of Certified Public Accountants. CEO 81-30 and CEO 83-78 are referenced. No provision of the Code of Ethics would preclude a Board member from chairing a committee of the Institute, and no provision addresses the question of whether service by one Board member on a committee should or could cause any other Board member to be unduly influenced by the first Board member's participation in debate and voting before the Board. As only certain policy-making or high-level administrative positions within the Institute are encompassed in Section 112.313(11), it is left to the individual conscience of each Board member to determine whether voluntary committee service would lead to conflicting responsibilities. The fact that the Board member may have participated in the formulation of the Institute's position on policies coming before the Board of Accountancy does not give rise to a voting conflict of interest recognized by the present Code of Ethics.

QUESTION 1:

Would a prohibited conflict of interest be created were you, a member of the State Board of Accountancy, to serve on various committees of the Florida Institute of Certified Public Accountants?

Your question is answered in the negative.

In your letter of inquiry, you advise that you serve as a member of the Florida Board of Accountancy. Upon your appointment to the Board, you advise, you resigned from your positions as an officer, executive committee member, and governor of the Florida Institute of Certified Public Accountants, as well as from your position as a director of the local chapter. You question whether you may serve on any of the various committees of the Institute, including some which consider matters directly regulated by the Board of Accountancy. Service on any of these committees is voluntary, without any compensation. As an example, you advise that through several committees the Institute has been working to develop criteria for specialization. As specialty designation is a function reserved to the Board of Accountancy, these matters will have to come before the Board for action.

The Code of Ethics for Public Officers and Employees provides in relevant part:

PROFESSIONAL AND OCCUPATIONAL LICENSING BOARD MEMBERS.--No officer, director, or administrator of a Florida state, county, or regional professional or occupational organization or association, while holding such position, shall be eligible to serve as a member of a state examining or licensing board for the profession or occupation. [Section 112.313(11), Florida Statutes.]

In previous opinions, we have advised that a State examining or licensing board member may serve on committees of state and local professional associations, as such service would not constitute service as an officer, director, or administrator of the association. See CEO 81-30, CEO 83-78, and CEO 85-74. In particular, we direct your attention to CEO 83-78, where we advised that a State licensing board member could serve on a committee of the state professional association that had been established to prepare for the Legislature's sunset review of the State licensing board.

The Code of Ethics further 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. [Section 112.313(7)(a), Florida Statutes.]

This provision prohibits public officials from having certain conflicting employment or contractual relationships. However, we have advised that voluntary service without compensation as a committee member or director of a private organization does not constitute an employment or contractual relationship with that organization subject to the prohibition of Section 112.313(7)(a). See, for example, CEO 84-118 (membership on task force of local chamber of commerce).

Accordingly, we find that no prohibited conflict of interest would be created were you to serve in a voluntary, uncompensated capacity as a member of any of the various committees of the Florida Institute of Certified Public Accountants while serving as a member of the Board of Accountancy.

QUESTION 2:

Are there any further restrictions on your service on any of the committees of the Florida Institute of Certified Public Accountants, including those committees that will be dealing with matters within the regulatory authority of the Board of Accountancy?

Your inquiry raises several additional questions regarding service on committees of the Institute while remaining a member of the Florida Board of Accountancy. First, you inquire whether you would be precluded from chairing a committee of the Institute. In response, we note that the Code of Ethics only prohibits serving in certain, specified capacities with the Institute, although employment or contractual relationships with the Institute may be prohibited as well. As voluntary, noncompensated service as a chairman of a committee of the Institute would not fall within either of these provisions, we conclude that the Code of Ethics does not preclude you from chairing a committee of the Institute.

Secondly, you question whether service by one Board member on a committee should or could cause any other Board member to be unduly influenced by the first Board member's participation in debate and voting before the Board. With respect to this and the following two questions you note that the Institute's policies restrict current Board members from serving on internal committees where specific knowledge gained from that service may affect either an Institute member's right to due process or the Institute's internal affairs.

The Code of Ethics is directed at conflicts of interest arising between the private interests of an official and that official's public duties. Although the Board's responsibility to provide due process of law may be of concern in a particular context, the weight given by one official to the opinions of another is not the subject of any provision within the Code of Ethics.

Thirdly, you question whether service by a Board member on a committee would violate in any way the public interest or the Board member's ability to serve the public interest. As we understand Section 112.313(11), quoted above, its intent is to prohibit the conflict of interest which arises because the goals of a State licensing board and those of a private professional organization, while not always conflicting, necessarily will be at variance at some points. One body exists to protect the public, while the other exists to protect the interests of its members. The Legislature has judged that only certain policy-making or high-level administrative positions within such an organization would pose a sufficiently significant conflict of interest to justify prohibiting service in those positions. Therefore, it is left to the individual conscience of each licensing board member to determine whether voluntary service in both capacities leads to overlapping and conflicting responsibilities.

Finally, you question whether a Board member serving on a committee should abstain from voting on policy decisions to be placed before the Institute's governing boards or from voting on proposals that may come before the Board of Accountancy. In response, we observe that the Code of Ethics addresses only voting conflicts of interest faced by public officers in their official capacities and does not apply to votes taken by members of private organizations in a private role. Therefore, other than observing that a committee member should comply with all of the Institute's policies and guidelines regarding such matters (to the extent that these are consistent with laws regulating the actions of Board members), we are unable to advise you on actions taken in that private capacity.

When and if those matters come before the Board of Accountancy, your actions are governed by the voting conflict provisions of the Code of Ethics, which specify that you are not prohibited from voting in any matter. However, if you vote in your official capacity upon a measure which inures to your special private gain or the special gain of any principal by whom you are retained, you are required within 15 days after the vote occurs to disclose the nature of your interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who is to incorporate the memorandum in the minutes. See Section 112.3143(2)(a), Florida Statutes. Further, as an appointed public officer, you are required to disclose your interest in any matter that inures to your special private gain or to the special gain of a principal by whom you are retained before you can participate in influencing the decision on that matter. See Section 112.3143(2)(b), Florida Statutes.

In CEO 84-118, we advised that a city-county planning commission member was not faced with a voting conflict if a recommendation or proposal of the chamber of commerce task force on which he served came before the planning commission, as it did not appear that such measures would have inured to the special private gain of the commission member or of any principal by whom he was retained. Similarly, here, we are of the opinion that policy matters affecting the profession as a whole and not involving circumstances from which you would stand to gain or lose more than the other members of the profession would not present you with a voting conflict of interest. In other words, the fact that you may have participated previously in the formulation of the Institute's position on policies coming before the Board of Accountancy does not give rise to a conflict of interest recognized by the present Code of Ethics. You may also wish to note the decision of the Third District Court of Appeal in Izaak Walton League of America v. Monroe County, 448 So.2d 1170 (Fla. 3rd DCA 1984), where the court concluded that members of a county commission are not disqualified from voting on a rezoning matter because of prior public pronouncements.

Your questions are answered accordingly.