CEO 89-61 -- November 30, 1989

CONFLICT OF INTEREST

CITY STORMWATER MANAGEMENT EMPLOYEE SEEKING FRANCHISE TO OPERATE TOUR SERVICE FROM CITY DOCKS

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

SUMMARY:

No prohibited conflict of interest would be created under Sections 112.313(3) and (7)(a), Florida Statutes, were an employee of a city division of stormwater management, department of sanitary sewer, to lease dock space from the city parks and recreation department. The employee would not be selling goods or services to the city, making Section 112.313(3), Florida Statutes, inapplicable. Also, the employee would not be doing business with his agency under Section 112.313(7)(a), Florida Statutes, because his agency is the division of stormwater management, while his contractual relationship is with the city parks and recreation department. In addition, the employee would have no involvement with this contractual relationship in his public duties, so that no continuing or frequently recurring conflict would be created with his private interests.

QUESTION:

Would a prohibited conflict of interest be created were an employee of the City of Tampa Department of Sanitary Sewer, Stormwater Management Division, to enter into a franchise or lease agreement with the City Parks and Recreation Department to use City owned docks to operate a tour boat service?

Your question is answered in the negative.

In your letter of inquiry and subsequent correspondence with our staff, you advise that . . . is an employee with the Stormwater Management Division in the Department of Sanitary Sewer of the City of Tampa. You state that this employee wishes to enter into a lease or franchise agreement with the City Parks and Recreation Department for the use of City owned docks on the Hillsborough River to operate a tour boat service. You inquire whether this transaction would constitute a prohibited conflict of interest.

The Code of Ethics for Public Officers and Employees contains two provisions which could apply to a public employee doing business with government. Section 112.313(3), Florida Statutes, provides:

DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee of his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

This provision would prohibit the employee from selling goods or services to the City and from purchasing goods or services for his agency. There is no indication that either of these is the case. Rather, the employee would be providing a service to private individuals and would hold a contractual relationship with a subdivision of the City. Therefore, this provision does not apply to this relationship.

The Code of Ethics also provides:

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 the employee from holding employment or a contractual relationship with a business entity which is subject to the regulation of or doing business with his agency. It is clear from the facts presented that the tour boat company would be "doing business" with the Parks and Recreation Department within the meaning of this provision. See CEO 80-10, where we advised that a lease agreement would constitute "doing business" for purposes of the Code of Ethics.

Having concluded that the subject employee is "doing business" within the meaning of this provision, we must define his "agency" to determine if he is doing business with that agency. In CEO 86-84, we advised that a county charter review board member could do business with the county as long as he did not sell to the charter review board. In CEO 81-66, no conflict was created where a member of a municipal development authority was a member of a law firm which was retained by the municipality. We advised that the agency of this board member was the municipal development authority, while his contractual relationship was with the city council. Under the rationale of these opinions, we would define the subject employee's agency as the Division of Stormwater Management, while his contractual relationship would be with the Parks and Recreation Department, an entirely separate Department from the Division. Therefore, he would not be doing business with his agency and the transaction would not be prohibited under this provision.

The second part of Section 112.313(7)(a), Florida Statutes, prohibits a contractual relationship which would create a continuing or frequently recurring conflict between the employee's private interests and the performance of his public duties or that would impede the full and faithful discharge of those duties. Here, there is no indication that the employee has any involvement in the City's decision to lease dock space or in any aspect of the lease agreement in his capacity as a public employee. Therefore, we find that the proposed lease agreement would not pose a conflict under this provision.

Accordingly, no prohibited conflict of interest would be created were the subject employee of the City Stormwater Management Division to enter into a lease or franchise agreement with the City Parks and Recreation Department for the use of City owned docks to operate a tour boat service.