CEO 90-69 -- October 19, 1990

CONFLICT OF INTEREST

CITY COUNCIL MEMBER EMPLOYED BY

PEST CONTROL COMPANY DOING BUSINESS WITH CITY

To: Nicholas F. Tsamoutales, Attorney (Palm Bay)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(3) or Section 112.313(7)(a), Florida Statutes, where a city council member is employed by a pest control company which provides services to the city, since the company was providing services to the city prior to the member's qualification for election. CEO 86-71 and CEO 82-10 are referenced.

QUESTION:

Is a prohibited conflict of interest created where a City Council member is employed by a pest control company providing services to the City, if the council member was employed by the company and the company was providing services to the City prior to the member's qualification for election?

Your question is answered in the negative.

In your letter of inquiry you advise that . . . . serves as a member of the City Council of Fellsmere. Prior to his qualifying for election to office, he was employed by a pest control company which was providing services to the City. He wishes to know if he can remain an employee of this firm and the firm continue to provide services to the City now that he is a member of the City Council.

In regard to this question, Section 112.313(3), Florida Statutes, provides:

DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shalleither directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee of his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

The prohibitions of this Section do not apply where the contract in question was entered into prior to the official's qualification for public office. Since you indicate that the contract between the City and the company existed before the Council member's qualification for elective office, this Section does not apply to the current contract.

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.

In previous opinions we have found that situations grandfathered-in under Section 112.313(3) also would be grandfathered-in under 112.313(7)(a). See, for example, CEO 86-71 and CEO 82-10. Therefore, since the Council member was employed by the company and the company did business with the City prior to his election, he would be grandfathered in under the analysis of these opinions.

If the company's contract with the City should be renewed or modified in some way, Sections 112.313(3) and 112.313(7)(a) may prohibit the Council member from continuing to work for the company. If one of these events should occur, we suggest that the Council member seek another opinion.

We also bring to your attention Section 112.313(6), Florida Statutes, which states:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

We suggest that the Council member be advised that any use of his official position, in a manner which is inconsistent with his public duties, to benefit himself or the company which employs him may be violative of this Section.

Accordingly, we find that no prohibited conflict of interest would be created were the subject City Council member to continue his employment with the pest control company. If the contract between the City and the company is modified or renewed, the Council member should seek an additional opinion at that time.