CEO 90-43 -- April 26, 1990

CONFLICT OF INTEREST

WATER MANAGEMENT DISTRICT CONTRACTS ADMINISTRATOR SERVING AS COUNTY COMMISSIONER FOR COUNTY WITHIN DISTRICT

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

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were the contracts administrator for a Water Management District to seek election or serve as county commissioner of one of the counties within the District. The District is not subject to the regulation of or doing business with the county, and the employee's duties as contracts administrator would not frequently conflict with or impede her duties as county commissioner. CEO 84-19, CEO 83-39, and CEO 81-5 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, the Contracts Administrator of a Water Management District, to seek election or serve as a County Commissioner of one of the counties within the District?

Under the circumstances you have described, your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that you are the Contracts Administrator for the Southwest Florida Water Management District. Your job description states that you are responsible for reviewing and coordinating the preparation, development, negotiation, and monitoring of all of the District's contracts, in conjunction with the Office of General Counsel and other staff. You plan and implement systematic contracting procedures and provide technical guidance and assistance on contract matters to the District's staff. You also are responsible for reviewing new and ongoing contracts.

You advise that you wish to run for the position of County Commissioner of one of the counties within the District. That County currently has two contracts with the District: one requires aquatic weed control maintenance by the District for certain bodies of water within the County, and the other is a 50-year lease of land from the County and the County Aviation Authority at the rate of one dollar per year. You state, however, that the District plans to purchase the land from the Aviation Authority and you therefore do not anticipate the lease to continue much longer.

The Code of Ethics for Public Officers and Employees contains no provision that would require you to resign your employment with the District or take a leave of absence from that employment in order to campaign for election. The resign-to-run law, Section 99.012, Florida Statutes, in certain instances requires office holders and subordinate personnel to resign their positions or to take a leave of absence while seeking election to public office. As we have no authority to interpret this provision in an advisory opinion, however, we suggest that you contact the Division of Elections of the Department of State for their interpretation of the application of the law in your circumstances.

On the question of whether you would have to resign your position with the Water Management District if elected to the Board of County Commissioners, the Code of Ethics 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 portion of this provision prohibits a public officer from being employed with an agency that either is doing business with or is subject to the regulation of the officer's agency. However, in past decisions we have not considered contracts such as you have described between local government entities to constitute "doing business" within the intent of Section 112.313(7)(a). See CEO 84-19, CEO 83-39, and CEO 81-5. As the Water Management District would not be subject to the regulation of the County, or vice versa, we find that the first part of Section 112.313(7)(a) would not apply.

Nor do we find that your duties as Contracts Administrator for the Water Management District would impede or frequently conflict with your duties as a County Commissioner, in violation of the second part of Section 112.313(7)(a). There currently are only two contracts between the District and the County. You state that you have not been involved with either of these contracts. The 50-year lease is expected to expire due to the fact that the District intends to purchase the land under lease. You believe that the purchase agreement pertaining to this land will be short-lived as the District intends to make a lump-sum, cash payment for the land and that the transaction will be completed before you could be elected as County Commissioner. We do not believe that the one remaining contract for aquatic weed control would be sufficient to create a continuing conflict or impede you in any performance of your public duties, as that contract automatically renews each year and as you have advised that you never have reviewed or even been involved with the contract.

Section 286.012, Florida Statutes, permits a county official to abstain from voting where there is or appears to be a possible conflict of interest under one of the provisions of the Code of Ethics. We suggest that under this provision you consider removing yourself from participation in any issue as a County Commissioner which involves the District. In addition, as the District's Contracts Administrator you may wish to refrain from any involvement regarding contracts between the District and the County.

Accordingly, we find that no prohibited conflict of interest would be created were you to remain the Contracts Administrator for the Water Management District while campaigning for election or serving as County Commissioner of one of the counties within the District.