CEO 91-32 -- July 19, 1991

CONFLICT OF INTEREST

COUNTY COMMISSIONER OWNER OF CORPORATE BUSINESS SUPPLYING

FLIGHT INSTRUCTORS, INCLUDING HIMSELF, TO FIXED BASE

OPERATOR AT COUNTY-OWNED AIRPORT

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

SUMMARY:

A prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where a corporation owned by a county commissioner and his wife provides flight instructors, including the commissioner, to a fixed-base operator leasing facilities at a county-owned airport. The situation is one that will create a frequently recurring conflict between the Commissioner's private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties because of the responsibility of the county commission as lessor under leasehold agreements with the fixed base operator and because of potential legal liability involving quality of flight instruction if an accident involving the fixed base operator were to occur.

QUESTION:

Does a prohibited conflict of interest exist where a county commissioner jointly owns with his wife a corporation which supplies flight instructors, including the commissioner, to a fixed base operator at a county-owned airport?

Your question is answered in the affirmative.

In your letter of inquiry and in telephone conversations between our staff and your office, we are advised that . . . . recently has been elected to the Board of County Commissioners of Monroe County. He and his wife are the sole owners of a small corporation which from time-to-time furnishes for compensation flight instructors, including himself, to a fixed base operator at a County-owned airport. Instructors are furnished infrequently, for a fixed price, and on an "as needed" basis. This arrangement with the fixed base operator existed prior to the Commissioner's being elected to office.

Regulation of the fixed base operator by the County Commission, which is done through the airport manager's office, consists primarily of Federal Aviation Authority regulations. The Commissioner's primary duty regarding fixed base operators would be to vote on the approval or disapproval of any new leasehold agreements with fixed base operators. Such contracts have terms of approximately five or six years. The Commissioner has yet to be involved in such a contract vote. The day-to-day management of relations between the County and fixed base operators is handled by a subordinate County employee and not by the County Commission. The fixed base operator contracts with the County Commission for its leasehold at the airport; there is no intervening airport authority. The leasehold was transferred to the operator from a previous holder and was renegotiated in 1985; it was not awarded through competitive bidding. The leasehold contract (including the 1985 renegotiation) was entered into prior to the Commissioner's being elected to office.

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 prohibits the County Commissioner from having or holding any employment or contractual relationship with any business entity which is subject to the regulation of or is doing business with his agency; it also prohibits the Commissioner's having or holding contractual or employment relationships 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.

According to the facts you present, the Commissioner has an employment or contractual relationship with the corporation (a business owned only by the Commissioner and his wife). This relationship is one 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. Even though County employees below the Commissioner perform duties regarding the fixed base operators who lease from the County, ultimate authority to take action and make decisions on behalf of the County regarding such operators and leaseholds rests with the County Commission. The existence of such a conflict is not predicated upon any presumption of wrongdoing by the Commissioner. The Commissioner's receipt of private business and employment through his corporate entity from a fixed base operator whom he has a public duty to regulate objectively in the best interest of the County creates a situation which tempts dishonor. For example, the Commissioner might be tempted to overlook an apparent breach of a leasehold agreement between a fixed base operator and the County because the operator had hired or might hire the Commissioner's business to provide flight instruction. Additionally, the Commissioner's commitment to public duty would be further tested were a flight or flight-related accident to occur at the County airport and the quality of flight instruction provided to the fixed base operator became an issue in the resulting controversy.

Accordingly, we find that the Code of Ethics for Public Officers and Employees prohibits the subject County Commissioner from co-owning a business which furnishes flight instructors, including the Commissioner, to a fixed-base operator at a County-owned airport.