CEO 91-5 -- January 30, 1990

CONFLICT OF INTEREST

COUNTY TRANSPORTATION FOR THE DISADVANTAGED BOARD

MEMBERS EMPLOYED BY AGENCIES SEEKING BOARD FUNDS

To: Sharon L. Cruz, Broward County Assistant County Attorney, (Ft. Lauderdale)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a member of the Broward County Coordinating Board for the Transportation Disadvantaged to be employed by an agency which may be the recipient of funds from the Coordinating Board. 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 public office when such practice is permitted by law. Section 427.013(9), Florida Statutes, authorizes the Transportation Disadvantaged Commission to develop and monitor rules and procedures to implement the statutory provisions, and Section 427.0157, Florida Statutes, authorizes the Commission to adopt rules regarding the membership of coordinating boards. The Commission has adopted Rule 41-2.012, Florida Administrative Code, which sets forth the membership requirements for coordinating boards, and the members of the Broward County Coordinating Board for the Transportation Disadvantaged were appointed from the categories established by the rule. In addition, the Board members would not have a voting conflict under Section 112.3143, Florida Statutes, where a vote to provide funding to the member's agency would not provide a private interest to the member, but rather would benefit the public interests of the agency. CEO 90-21 is referenced.

QUESTION:

Would a prohibited conflict of interest by created were a member of the Broward County Coordinating Board for the Transportation Disadvantaged to be employed by or be a member of one of the groups established by Rule 41-2.012, Florida Administrative Code, which is the recipient of Coordinating Board funds?

Your question is answered in the negative.

In your letter of inquiry you advise that you seek this opinion on behalf of the members of the Broward County Coordinating Board for the Transportation Disadvantaged, a board whose members were appointed by the Broward County Metropolitan Planning Organization from the categories established by Rule 41-2.012, Florida Administrative Code. Section 427.0157, Florida Statutes, gave the Transportation Disadvantaged Commission the authority to establish the membership of coordinating boards by rule. The Commission promulgated Chapter 41-2, Florida Administrative Code, which includes Rule 41-2.012, Florida Administrative Code, the section which sets forth the membership requirements of coordinating boards. Within Broward County, members of the Broward County Coordinating Board were appointed from categories established by the rule, and certain members are employed by agencies which may be the recipient of funds from the Coordinating Board.

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.]

Although this provision generally prohibits a public officer or employee from holding an employment or contractual relationship with an agency subject to the regulation of, or doing business with, his agency, Section 112.313(7)(b), Florida Statutes, provides that the prohibition cited above 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." Your letter referenced CEO 90-21 as very similar factually, the distinction being that in CEO 90-21 there was a specific statute which permitted the member of the council to be employed by the local agency receiving funding from the council. In the situation you have described, it is an administrative rule, not a statute, which permits the board member also to be employed by an agency that may receive funding from the Coordinating Board.

The Transportation Disadvantaged Commission is authorized by Section 427.013(9), Florida Statutes, to "develop and monitor rules and procedures to implement the provisions of ss. 427.011-427.017."

Section 427.0157, Florida Statutes, provides in relevant part:

Coordinating Boards; powers and duties.

The purpose of each coordinating board is to develop local service needs and to provide information, advice, and direction to the community transportation coordinators on the coordination of services to be provided to the transportation disadvantaged. The commission shall, by rule, establish the membership of coordinating boards. . . .

Rule 41-2.012(3), Florida Administrative Code, provides in relevant part:

In addition to the Chairperson the following agencies or groups shall be represented on the Board, in every county as voting members:

(a) A local representative of the Florida Department of Transportation;

(b) A local representative of the Florida Department of Rehabilitative Services;

(d) A local representative of the Florida Department of Labor and Employment Security;

(e) A person who is recognized by the Florida Department of Veterans' Affairs, representing the veterans in the county;

(f) A person who is recognized by the Florida Association from Community Action (President), representing the economically disadvantaged in the county;

(g) A person over sixty representing the elderly in the county;

(h) A handicapped person representing the handicapped in the county; and

(i) Two citizen advocate representatives in the county; one who must be a user of the system.

It is our opinion that the legislative intent to involve these governmental agencies with the transportation disadvantaged issue is clear and that this intent was further implemented by the promulgation of Rule 41-2.012(3), Florida Administrative Code. Weare therefore of the opinion that in this case the language in Section 112.313(7)(b), Florida Statutes, concerning holding public office or employment that is "required or permitted by law or ordinance" should be interpreted to include public office or employment that is required or permitted by an administrative rule, promulgated in accordance with Chapter 120, Florida Statutes.

Although your letter of inquiry does not mention the issue of voting conflicts of interest that members of the Broward County Coordinating Board for the Transportation Disadvantaged may face, we believe that the caution contained in CEO 90-21 is equally applicable. Therefore, we do not believe that a voting conflict of interest pursuant to Section 112.3143, Florida Statutes, would be created were a member to vote to recommend funding to his agency, unless it also provided a special private gain to the member.

Accordingly, we find that no prohibited conflict of interest would be created were the subject members of the Broward County Coordinating Board for the Transportation Disadvantaged to be employed by governmental agencies which may receive funding from the Coordinating Board, where such employment is permitted by Rule 41-2.012(3), Florida Administrative Code. In addition, no voting conflict of interest would be created were the members of the Coordinating Board to vote on matters pertaining to funding for their local agencies, where the vote does not result in a special private gain to the individual member.