CEO 91-29 -- June 7, 1991

ANTI-NEPOTISM; CONFLICT OF INTEREST; VOTING CONFLICT

COUNTY COMMISSIONER APPOINTING DAUGHTER TO ECONOMIC

DEVELOPMENT COMMISSION, SERVING ON BOARD OF VICTIM ASSISTANCE

CORPORATION, AND VOTING ON FUNDING FOR SAID CORPORATION

To: Bonnie Zimmer, County Commissioner, Pasco County (Dade City)

SUMMARY:

A county commissioner, or the board of county commissioners, is prohibited from appointing a daughter of the commissioner to an uncompensated position on an advisory board, because the anti-nepotism law (Section 112.3135, Florida Statutes) applies to all positions in an agency in which a public official is serving or over which the official exercises jurisdiction or control, and not just to paid positions. CEO 89-53 is referenced.

No prohibited conflict of interest or voting conflict of interest would be created by the commissioner serving without compensation as a member of the board of directors of a nonprofit victim's assistance corporation, or by the commissioner voting on funding measures pertaining to the corporation. Section 112.313(7)(a), Florida Statutes, would not be violated because, due to the uncompensated nature of the corporate position, there would not be an employment or a contractual relationship. Section 112.3143(3), Florida Statutes, would not be violated because a vote on a funding measure involving the corporation would not inure to the special gain of the commissioner or that of a principal retaining the commissioner. CEO 84-118 is referenced.

QUESTION 1:

Would the Code of Ethics for Public Officers and employees preclude you, a county commissioner, or the board of county commissioners from appointing your daughter to an uncompensated position on a local advisory board?

Your question is answered in the affirmative.

In your letter of inquiry, you advise that you are a member of the Board of County Commissioners of Pasco County. Your daughteris a possible appointee, by you or the Board, to a position on the County Economic Development Commission. The Commission is an advisory entity created by the Board for the purpose of providing citizen input on economic development issues. The Commission has no authority to bind or commit the County on any issue. The Commission's members are not compensated for their services on the Commission and are not reimbursed by the County for travel or other expenses.

The anti-nepotism law, which has been incorporated into the Code of Ethics for Public Officers and Employees as Section 112.3135, Florida Statutes, provides in relevant part:

A public official may not appoint, employ, promote, or advance, or advocate for appointment, employment, promotion, or advancement, in or to a position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official. An individual may not be appointed, employed, promoted, or advanced in or to a position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual.

That section also includes "daughter" in the definition of "relative."

In CEO 89-53, Question 1, we found that the prohibitions of Section 112.3135 applied to non-compensated advisory board positions and to appointments by collegial bodies, even when a member of the body abstains from voting on the appointment of the member's relative.

Accordingly, we find that your daughter may not be appointed to the County Economic Development Commission by you, by a member of the Board of County Commissioners, or by the Board.

QUESTION 2:

Would a prohibited conflict of interest be created were you to serve as a member of the board of directors of a nonprofit corporation formed for the purpose of assisting victims of domestic violence?

Your question is answered in the negative.

You further advise that you are contemplating service as a member of the board of directors of a nonprofit corporation formed for the purpose of assisting victims of domestic violence. The board members volunteer their time and serve without compensation. The corporation in the past has received funding for its programs from the Board of County Commissioners through recommendation by the local United Way. The Board has entered into an agreement with the United Way under which funding for local charitable organizations designated by the Board is recommended to the Board by the United Way. It is expected that such funding will continue in the future.

Section 112.313(7)(a), Florida Statutes, 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.

This section would prohibit you from having an employment or contractual relationship with any business entity which is subject to the regulation of your agency or which is doing business with your agency; it also would prohibit you from having or holding any employment or contractual relationship which would create a continuing or frequently recurring conflict between your private interests and the performance of your public duties or that would impede the full and faithful discharge of your public duties.

A threshold issue to be dealt with in your situation is whether you would have an employment or contractual relationship with the nonprofit corporation by virtue of serving, without compensation, on its board of directors. In CEO 84-118, Question 1, we found that no prohibited conflict of interest was present when city-county planning commission members served without compensation on a chamber of commerce task force that was anticipated to make proposals before the planning commission; we concluded that due to lack of compensation, task force membership did not constitute an employment or contractual relationship. The reasoning of that opinion and others is applicable to your situation.

Accordingly, we find that no prohibited conflict of interest would be created were you to serve as a member of a nonprofit corporation formed for the purpose of assisting victims of domestic violence.

QUESTION 3:

Would you be required to abstain from voting on funding for the nonprofit corporation?

Your question is answered in the negative.

The Code of Ethics provides in relevant part:

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. [Section 112.3143(3), Florida Statutes.]

This provision would prohibit you from voting on any measure which would inure to your special gain or the special gain of a principal retaining you.

Under the circumstances presented, a vote on funding of the nonprofit corporation would not inure to your special gain. Since retention by a principal requires compensation, such a vote would not inure to the special gain of a principal by whom you are retained. See CEO 79-66.

Accordingly, we find that you are not required to abstain from voting on funding measures of the nonprofit corporation.