CEO 89-56 -- October 26, 1989

CONFLICT OF INTEREST

FIREFIGHTERS EMPLOYED BY THE COUNTY AND

BY PRIVATE NONPROFIT VOLUNTEER FIRE DEPARTMENTS

To: Neal Bowen, Osceola County Attorney (Kissimmee)

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were county firefighters employed by a county municipal services benefit unit also to be employed by volunteer fire departments under contract with the municipal services benefit unit to provide firefighting services.

QUESTION:

Would a prohibited conflict of interest be created were employees of a county municipal services benefit unit also to be volunteer firefighters with volunteer fire departments under service agreements with the municipal services benefit unit?

Your question is answered in the affirmative, subject to the conditions noted below.

In your letter of inquiry and subsequent correspondence with our staff, you advise that the Osceola County Board of County Commissioners has created the Osceola County Fire and Rescue Municipal Services Benefit Unit (MSBU) under Sections 125.01(1)(q) and 125.01(2), Florida Statutes. The purpose of this district is to provide fire and rescue services to unincorporated areas of the County through service agreements with existing volunteer fire departments (VFD's), which are nonprofit private corporations. Management level personnel and full time career firefighters with the VFD's would become employees of the County through the MSBU as well as holding positions with the VFD's, and would be compensated by both entities. Mr. Bob Jablonski, currently chief of one of the VFD's, would fall in this category and receive a salary from the County as well as a stipend from the VFD. Part-time volunteers with the VFD's also may be paid firefighters with the MSBU. You inquire whether these relationships constitute a prohibited conflict of interest.

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.

This provision would prohibit an employee of the MSBU from being employed by a VFD if that VFD is doing business with the MSBU.

We previously have advised that governing officers of a county or city may not serve for compensation with a volunteer fire department contracting with their government entity. In these cases it was held that the individual was employed with an agency or a business entity which was subject to the regulation of or doing business with his agency. See CEO 87-6, CEO 80-29, and CEO 78-28. Under the rationale of these decisions, any employee of the MSBU would be prohibited from compensated employment with a VFD under contract to the MSBU. Under these circumstances, the VFD's are doing business with the MSBU, and the dual employment of any individual would be prohibited.

In addition, volunteers with the VFD's would be prohibited from employment with the MSBU if they received any compensation from the VFD. You advise that these volunteers may receive a "per call" fee in the discretion of their corporate boards, to be paid from non-county funds. In addition, they would receive worker's compensation and insurance coverage funded by the County as part of their position with the MSBU. We previously have held that where volunteer firefighters receive compensation in the form of a stipend, they are employees for purposes of the Code of Ethics. In re Cornelius Adema, William Hansen, Brian Juntikka, Complaint Nos. 80-42, 80-43, 80-44 (Consolidated), 3 FALR 2090-A (1981). Whether that compensation is paid from County supplied funds or other funds of the VFD would not affect the employment relationship that would exist between the VFD and the compensated volunteer. Volunteers who receive no compensation, either in the form of a stipend, insurance coverage, per call fees, or other personal benefit, would not be "employees" of the VFD and so would not be prohibited from employment with the MSBU. See CEO 80-29. Coverage under the County's worker's compensation policy or other insurance coverage for injuries related to firefighting duties would not constitute compensation, as this coverage is typically required for all persons in these roles and is often provided as much to protect the government entity as for the benefit of the individual. Therefore, any volunteers who receive no compensation, or who receive only worker's compensation and duty related insurance, could be paid employees of the MSBU.

While certain exemptions are provided to the prohibition of Section 112.313(7) through Section 112.313(12), Florida Statutes, these would not appear to be applicable to a situation where the MSBU elects to contract with certain VFD's. In CEO 86-29, we advised that a mayor may serve as a trustee of a volunteer fire department contracting to provide services to the city. However, in that case, through referendum the city was prohibited from contracting with any entity other than the subject VFD. Therefore, the VFD was the sole source of supply for firefighting services in the city and the exemption of Section 112.313(12)(e) applied. That section provides that "no person shall be held to be in violation of subsection . . . (7) if . . . the business entity involved is the only source of supply within the political subdivision of the officer or employee . . .." In this case the exemption would not apply because a particular VFD is not the sole source of supply within the jurisdiction of the MSBU.

Accordingly, we find that a prohibited conflict of interest would be created were compensated employees of volunteer fire departments also to become employees of the Municipal Services Benefit Unit contracting with those departments.