CEO 91-64 -- December 6, 1991

CONFLICT OF INTEREST

FIRE PROTECTION AND RESCUE DISTRICT COMMISSIONER

MEMBER OF UNION REPRESENTING DISTRICT EMPLOYEES

To: Jim Brantley, Board of Fire Commissioners, South Trail Fire Protection and Rescue Service District (Ft. Myers)

SUMMARY:

No prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where a union member firefighter of one special taxing fire protection and rescue service district is elected as a commissioner of another special taxing fire protection and rescue service district, where each district negotiates its labor contracts with the same labor union. The exclusion within the first part of Section 112.313(7)(a) for contractual relationships with organizations which enter into or negotiate a collective bargaining agreement with a political subdivision of the state applies in this instance. Nor would a continuing or frequently recurring conflict or impediment to the full and faithful discharge of public duties exist where the union members of each fire department negotiate their own contracts. Thus, although the same union represents the firefighters in both departments, the contracts negotiated are different. Under these circumstances, any conflict that exists does not appear to be so substantial as to arise to a prohibited conflict of interest under the Code of Ethics.

QUESTION:

Does a prohibited conflict of interest exist where you, a firefighter who is employed by one special taxing fire protection district and is a member of a labor union, have been elected as a Commissioner of another special taxing fire protection district and where each district negotiates its labor contracts with the same labor union?

Your question is answered in the negative.

In your letter of inquiry, you advise that you were elected in November 1989 to a four year term as a Commissioner for the South Trail Fire Protection and Rescue Service District ("South Trail") in Fort Myers, a position for which you receive only reimbursement of actual expenses. South Trail is a special taxing district created pursuant to Chapter 76-412, Laws of Florida. Its boundaries were later modified pursuant to Chapter 88-545, Laws of Florida. The District is governed by an elected five member commission which appoints the Fire Chief, who manages the day to day operations of the District's Fire Department. A person seeking to be elected Commissioner is required to be only a qualified elector and a resident of the District.

You advise that the Commission is responsible for, among other things:

1. Overseeing the financial affairs of the Fire District;

2. Receiving and approving the annual budget presented by the Fire Chief and his administrative staff;

3. Setting the yearly millage rate for the District;

4. Giving final formal approval for major purchases proposed by the Fire Chief and his staff;

5. Determining salaries and wages of District personnel;

6. Hearing protests of tax assessments; and

7. Reviewing and approving the union contract negotiated by the Fire Chief and his management staff.

You also advise that you are a "career professional firefighter/paramedic" for another special taxing fire protection and rescue service district's fire department. As a firefighter, you are a member of the Southwest Florida Professional Firefighters, a collective labor union of 350 members from seven different Lee County fire departments. You advise that this local union is affiliated with the Professional Firefighters of Florida, consisting of 12,000 union firefighters, and the International Association of Firefighters, consisting of 180,000 members, which also is affiliated with the AFL-CIO.

You advise that although the seven departments are represented in their collective bargaining by the same union, each department negotiates its own contract with the administration of that department by assembling a team of firefighters from each department to negotiate with their department's fire chief. You advise that the departments' union members negotiate their own level of benefits and wage scales, as well as the length of their contracts. You advise that the wages and benefits negotiated for one district do not impact any member in any other district. Thus, you advise, all seven contracts are "separate, quite different, and have nothing at all to do with one another." You advise that once the contract has been negotiated, both the members of the union in that district and the district's commissioners must vote on it. If the two sides fail to reach agreement, the commission has the option of voting to send the contract to arbitration with the Public Employees Relations Commission (PERC).

You question whether a conflict of interest exists where a union firefighter of a special taxing fire protection and rescue service district's fire department serves as an elected commissioner of a second district's fire department, when both the firefighter/commissioner and the members of the second fire department belong to the same union. You do not believe that there is any conflict. In fact, you believe your background has been a benefit to the business of the Commission on which you serve and to the Department which you oversee as a Commissioner.

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.]

The first part of this provision prohibits you from having any employment or contractual relationship with a business entity which is subject to the regulation of, or doing business with, your agency. For purposes of this analysis, we are of the opinion that your agency is the South Trail Fire Protection and Rescue Service District. We also are of the opinion that the Southwest Florida Professional Firefighters, your labor union, comes within the definition of "business entity" contained in Section 112.312(5), Florida Statutes. See CEO 74-59. In addition, we are of the opinion that by virtue of the collective bargaining contract with South Trail, the union is doing business with South Trail. See CEO 82-8. Finally, the constitution, rules, and bylaws of the union constitute a contract between the union and its members. See 34 Fla. Jur 2d, Labor & Labor Relations, s.49. Thus, we are of the opinion that you have a contractual relationship with the Southwest Florida Professional Firefighters.

Although your contractual relationship with the firefighters union would appear to be a prohibited conflict, an exclusion exists within Section 112.313(7)(a), for contractual relationships with organizations which enter into or negotiate a collective bargaining agreement with a political subdivision of the state. Therefore, although the initial language of this section would indicate that a District Commissioner's membership or contractual relationship with the union which represents firefighters would be prohibited per se, the exclusionary language indicates that such membership is not prohibited per se. For this reason, as we did in CEO 82-8, we must determine the applicability of the remaining language in the Section. This language prohibits a public officer from having any employment 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.

As a Commission member of South Trail, you are responsible for acting in the best interests of South Trail, which interests do not necessarily coincide with the interests of the union. Therefore, to some extent, there will be some conflict of interest between your public duties as a Commissioner and your interests as a member of the union. However, under the circumstances presented, we do not find that your mere membership in the union presents such a conflict of interest as to result in a continuing or frequently recurring conflict of interest or as to impede the full and faithful discharge of your public duties in violation of Section 112.313(7)(a). See CEO 80-45. In reaching this conclusion, we note that the union members of each fire department negotiate the terms of their contract. The contract negotiated by the members of the South Trail Fire Department is not the same as the contract negotiated by the union members of the fire department where you are employed. Further, the contract negotiated by the union members of the South Trail Fire Department should not impact on the contract negotiated by the union members of the fire department where you are employed. Thus, because of the lack of identity of interests among the seven fire departments, we are of the opinion that any conflicts that do exist will not be so substantial as to result in a continuing or frequently recurring conflict between your duties as a Commissioner and your private interests as a union member in a different fire department, or as to impede the full and faithful discharge of your public duties as a District Commissioner.

Accordingly, under the circumstances set out above, we do not find that a prohibited conflict of interest is automatically created by your union membership and your position of District Commissioner. As a cautionary note, we direct your attention to the following provisions of the Code of Ethics:

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.

DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity.

These provisions would prohibit you from using your official position to gain access to information regarding the special taxing fire protection and rescue service districts which would not be available to the general public, and from otherwise using your official position in a manner inconsistent with the proper performance of your public duties in order to assist your union in its preparation of negotiations or other dealings with the districts.