CEO 90-21 -- March 8, 1990

CONFLICT OF INTEREST

DEVELOPMENTAL DISABILITIES PLANNING COUNCIL MEMBERS EMPLOYED BY AGENCIES OR ORGANIZATIONS SEEKING COUNCIL FUNDS

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

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a member of the Developmental Disabilities Planning Council to be employed by a county school board which seeks Council funds. Section 112.313(7)(b), Florida Statutes, specifically exempts from the prohibition of Section 112.313(7)(a), practice in a particular occupation by persons holding a public office when such practice is permitted by law. Section 393.001(5), Florida Statutes, provides that the Council shall include representative of local agencies. The county school board is such a local agency. In addition, the Council member would not have a voting conflict under Section 112.3143(2), Florida Statutes, where a vote to provide funding to the school board would not provide a private benefit to the employee, but rather would benefit the public interests of the agency. A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a member of a task force of the Council to be employed by an organization affiliated with a State university which is seeking Council funds. However, the exemption provided at Section 112.313(12), Florida Statutes, would allow the Chairperson of the Council, as the person appointing the task force member, to waive the conflict. If a waiver were obtained, the task force member would not be prohibited from voting on matters which would benefit the university, as opposed to those which would inure to her special private gain.

QUESTION 1:

Would a prohibited conflict of interest be created were a member of the Developmental Disabilities Planning Council to be employed by a county school board which is the recipient of Council funds?

Your question is answered in the negative.

In your letter of inquiry and in telephone conversations with our staff, you advise that you seek this opinion on behalf of . . . . a member of the Developmental Disabilities Planning Council. You advise that this member also is employed by a county school board and serves on a task force of the Council which recommended a project for funding initiated by that county school system. Subsequent to that recommendation, the task force member was appointed to the Council itself. The eventual proposal approved by the Council included contracting with the county school board to develop materials for implementation of this project. You inquire whether this member of the task force and the Council may be employed by the school board which will contract with the Council.

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.]

This provision generally prohibits a public officer from holding an employment or contractual relationship with any agency subject to the regulation of, or doing business with, his agency. In CEO 77-65, we advised that the Florida Bicentennial Commission could not provide grant funds to a university employing a commission member to edit and prepare a manuscript for publication. In that opinion, we noted that the grant to the university constituted doing business with an agency employing the public officer. Under this rationale, the Council member seemingly would be prohibited from being employed by an agency which is doing business with the Council.

However, Section 112.313(7)(b), Florida Statutes, provides that the above prohibition shall not prohibit a public officer from "practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance." In CEO 83-73, we determined that this provision would permit a member of a district advisory council of the Department of Health and Rehabilitative Services to be employed by a contract provider to the district, on the basis that the Legislature, in specifying the membership of the council contemplated that members be employed by organizations or agencies receiving funding through the council. See also CEO 87-69. We find the rationale of those opinions to be applicable here, as Section 393.001(5), Florida Statutes, provides in relevant part:

The council at all times must include in its membership representatives of the principal state agencies, higher education training facilities, local agencies, and nongovernmental agencies and groups concerned with services to persons with developmental disabilities and one person who is not, and has never been, engaged in the business of providing training or other services to persons having developmental disabilities.

Under this provision, it is contemplated that some members of the Council be affiliated with local agencies which are involved with providing services to developmentally disabled persons. You have indicated that school boards are local agencies for purposes of this provision. On this basis, employment by the subject Council member with the county school board while it receives Council funds is permitted under Section 112.313(7)(b).

Although not mentioned in your letter of inquiry, the Council member also should be cautioned regarding potential conflicts in voting on matters before the Council involving the school board which is his employer. Section 112.3143(2), Florida Statutes, generally requires State officers to disclose interests in measures on which they vote and which inure to their special private gain or that of a principal by whom they are retained. In CEO 86-86, we advised that no voting conflict of interest would be created where an employee of the Department of Health and Rehabilitative Services voted as a member of the Developmental Disabilities Planning Council on distribution of federal funds to his Department. In that instance, we noted that the vote would not involve any private interest of the individual, but rather the public interests of the Department. On this basis, a vote by the subject task force member to recommend funding to the school board would be permitted, unless it also provided a special private gain to the member. As the existence of special private gain depends on the facts of a particular situation, we suggest that additional guidance should be sought if doubts should arise as to the application of this section to specific votes.

Accordingly, we find that no prohibited conflict of interest would be created were the subject member of the Developmental Disabilities Planning Council to be employed by a local agency which receives funding from the Council, where such employment is permitted by statute. In addition, no voting conflict of interest would be created were that member to vote as a member of the Council on matters pertaining to funding for his local agency, where the vote does not result in a special private gain to him.

QUESTION 2:

Would a prohibited conflict of interest be created were a member of a task force of the Developmental Disabilities Planning Council to be employed by an organization which is the recipient of Council funds?

Your question is answered in the negative.

In your letter of inquiry, you advise that . . . . serves on the Council's Task Force for Prevention of Developmental Handicaps and is employed by a project through a State university which is designed to address issues concerned with low birth weight and infant mortality. She does not serve on the Council itself, but Task Force members are appointed by the Chairperson of the Council. The Task Force recommended that funding be directed to local affiliates of the statewide project through a contract with the university which employs the task force member. The Council will make the final determination of whether to fund this project and would execute the contract with the State university.

Based on the facts presented, this situation would present the same type of apparent conflict as in Question 1. As a member of a task force to the Council, the member's agency would be the Council, which is doing business with her employer. However, it is not specified in law that members of task forces to the Developmental Disabilities Planning Council may hold particular occupations. Therefore, the exemption cited in Question 1 would not apply.

However, other exemptions to the conflicting employment prohibition of Section 112.313(7)(a) are provided in Section 112.313(12), Florida Statutes. In reviewing these exemptions, one appears to be most directly applicable to the facts presented. Section 112.313(12) provides that the requirements of 112.313(7)(a):

.... as they pertain to persons serving on advisory boards may be waived in a particular instance by the body which appointed the person to the advisory board, upon a full disclosure of the transaction or relationship to the appointing body prior to the waiver and an affirmative vote in favor of waiver by two-thirds vote of that body. In instances in which appointment to the advisory board is made by an individual, waiver may be effected, after public hearing, by a determination by the appointing person and full disclosure of the transaction or relationship by the appointee to the appointing person.

In CEO 82-58, we advised that this provision could apply to an apparent conflict of interest where a member of a city social services allocations committee was employed by a social services agency applying to the committee for funding. Applying this exemption to the facts presented, we find that the Chairperson of the Council, as the person appointing the Task Force members, could waive an apparent conflict under Section 112.313(7)(a). Commission on Ethics Form 4A has been created for purposes of making the disclosures required under this provision.

As in question 1, we also must examine the provisions of the voting conflicts law. Should waiver be effected by the Council, the member may be called upon to vote on matters which involve her employer or may benefit her personally. As in question 1, where a matter does not inure to the special private gain of the member, but rather only benefits her public agency, the subject Task Force member would not be prohibited from voting. Again, should questions arise with regard to a particular vote, we suggest that additional guidance be requested.

Accordingly, we find that unless a waiver is obtained from the Chairperson of the Council in accordance with the provisions of Section 112.313(12), Florida Statutes, a member of a task force to the Developmental Disabilities Planning Council may not be employed by a university which is the recipient of Council funds. However, should that waiver be obtained, the task force member would not be prohibited from voting on measures which benefit the agency which is her employer, where no special private gain inures to the member herself.