NEIGHBORING COUNTY
To:
SUMMARY:
No prohibited conflict of interest is created under Section 112.313(7)(a), Florida Statutes, where the director of a county public transportation commission, which regulates wrecker services operating on the public highways of the county and providing towing services to governmental entities, contracts as a consultant with a towing service which does no business with and is not regulated by his agency, in a neighboring county. The director does not have an employment or contractual relationship with a towing service regulated by his agency where the owner of the company with which he has contracted also owns a company in his agency's county which contracts with a towing service regulated by the commission.
No final conclusion can be drawn, as Section 112.313(6), Florida Statutes, requires a determination of intent.
QUESTION 1:
In your letter of inquiry and response to questions propounded by our staff, you advise that you seek this opinion on behalf of Mr. Anthony Gonzalo, Director of the Hillsborough County Public Transportation Commission ("HCPTC"), which was created by Chapter 83-423, Laws of Florida (and amended by Chapters 87-496 and 88-493, Laws of Florida) for the purpose of regulating taxicabs, limousines, handicabs, vans, basic life support ambulances, and wreckers which operate upon the public highways of Hillsborough County and of each municipality, authority, or body politic within the County. Included within the HCPTC's responsibilities are fixing and approving taxicab zones, rates, fares, and charges; making classifications, rules, and regulations for such operations; requiring the filing of reports and other data concerning such operations; and supervising and regulating taxicabs, limousines, vans, handicabs, basic life support ambulances, and wreckers, in all matters affecting the relationship between such operators and the traveling public, including safety and equipment, cleanliness, and qualifications of operators (drivers). You advise that the jurisdiction of the HCPTC is limited to Hillsborough County and, in the case of towing companies, to those businesses providing towing services to governmental entities and operating on the public highways within Hillsborough County.
You advise that the Director was approached by two brothers to assist them in the acquisition and reorganization of a Pinellas County towing service ("towing service") by a company established by the brothers in August 1992 and located in Pinellas County. You advise that the Director owns no interest either in the company or in the towing service. Since the company's creation, the Director has worked, primarily on the weekends but also occasionally after his normal working hours on weekdays, with a computer programmer to develop a tracking system to be used by the company in order to keep records of incoming service calls and services performed by the company, and he has overseen the expenditures made by the company. You also advise that in order to ensure that there would be no overlap between the acquisition and reorganization of the towing service and his position as Director of the HCPTC, the Director took extended vacation leave for the month of August 1992, the period of time covered by the acquisition and reorganization of the towing service.
You advise that the brothers also own two other companies which entered into a contract with the City of Tampa in March 1992 to provide scrap removal services to the City. You advise that the contract encompasses the removal of inoperative vehicles, scrap metal, machinery, dangerous material (as defined by City ordinance. i.e. abandoned refrigerators), portable signs, and specialty items such as fiberglass boats. Because the brothers' other companies do not operate any wreckers, the contract contemplates the use of third party wrecker services when removal of vehicles from City property is required. You advise further that the Director did not participate in the City's choice of the brothers' other companies, had no role in the City's procurement practices, and has no contractual relationship with the companies contracting with the City.
Questions of a possible conflict of interest have been raised by another Pinellas County wrecker service which has a contract with the State to remove disabled vehicles from the Hillsborough County side of the Howard Franklin Bridge and which, you advise, because it does business in Hillsborough County, is regulated by the HCPTC. The questions pertain to a possible unfair competitive advantage being given to the brothers' Pinellas County towing service because of the Director's contractual relationship with that company and apparently his ability to oversee the regulation of one of that company's competitors, you write. In addition, an HCTPC certificate holder, who operates a Hillsborough County towing service in Hillsborough County and who is a member of a three member Industry Advisory Committee which makes recommendations to the HCPTC on matters concerning the wrecker industry, began serving temporarily as general manager for the Pinellas County towing service with which the Director has a contractual relationship. However, the certificate holder continues to own and operate his own company in Hillsborough County, you advise.
The first part of this section prohibits the Director from holding an employment or contractual relationship with a business entity which is either doing business with or is regulated by the HCPTC, while the second part prohibits the Director from holding an employment or a contractual relationship which would create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or would impede the full and faithful discharge of those duties. For purposes of the Code of Ethics, a "conflict of interest" is defined at Section 112.312(8), Florida Statutes, to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest."
Under the circumstances presented, we find that the first part of Section 112.313(7)(a), Florida Statutes, is not implicated. The company established to acquire the Pinellas County towing service clearly is not doing business with the HCPTC. Moreover, because the company does not operate in Hillsborough County, it is not regulated by the HCPTC. Although the brothers' companies which have contracted with the City of Tampa may have a contractual relationship with another Hillsborough County towing service regulated by the HCPTC, the Director does not have a contractual relationship with those companies simply because of the brothers' ownership of the Pinellas County towing service. Similarly, the Director does not have a contractual relationship with the Hillsborough County towing service certificated by the HCPTC and owned by the member of the Industry Advisory Committee, who, while maintaining his ownership and operation of the Hillsborough County towing service, is temporarily serving as general manager of the Pinellas County towing service simply because he is employed by the Pinellas County towing service which has a contractual relationship with the Director.
Under the circumstances presented, we also find that the second part of Section 112.313(7)(a) is not implicated because there is no indication that the Director's contractual relationship with the Pinellas County towing service, which operates outside of the jurisdiction of the HCPTC, creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties. Although the Hillsborough County certificate holder is employed temporarily as general manager of the Pinellas County towing service, you have advised that he holds no interest in the towing service. Therefore, the Hillsborough County certificate holder's employment by the Pinellas County towing service should not affect the Director or his private interests nor should it interfere in any way with the Director's responsibility to enforce the rules and regulations of the HCPTC as they apply to the certificate holder's Hillsborough County wrecker service.
There also is no indication that the Director's contractual relationship with the Pinellas County towing service would create a continuing or frequently recurring conflict between the Director's private interests and the performance of his public duties with respect to the application and enforcement of the rules and regulations of the HCPTC to any Hillsborough County towing services which may contract with the brothers' other companies to provide towing services when required pursuant to the City of Tampa's contract with the brothers' other company or would impede the full and faithful performance of his public duties. You have advised that in order for a wrecker company to obtain a certificate from the HCPTC, it must meet the requirements of the rules promulgated by the HCPTC. You also have advised that the granting of a certificate is an administrative determination, and, to date, no application for a certificate has been denied.
From the information that we have been provided, we are unable to determine whether the brothers' Pinellas County towing service has a competitive advantage over the Pinellas County wrecker service which has contracted with the State to remove disabled vehicles from the Hillsborough County side of the Howard Franklin Bridge. The wrecker service is regulated by the HCPTC because it does business in Hillsborough County; however, any competition that exists between the two companies occurs in Pinellas County, which is outside of the jurisdiction of the HCPTC.
QUESTION 2:
You advise that one of the inspectors for the HCPTC lives in Pinellas County and travels to and from his home and the offices of the HCPTC in Hillsborough County each work day. You also advise that the Pinellas County towing service ("company") for which the Director provides consultation services is located within several blocks of the Inspector's route between work and home. At the Director's request, the Inspector, on his own time and while on his way to work, stopped at the company's office and picked up a uniform and some radio equipment and transported these items to the offices of the HCPTC, you advise. You advise further that on two or three other occasions, while on his own time, the Inspector dropped off deposits for the company at a local bank.
You and the attorney for the HCPTC advise that inspectors are law enforcement personnel who carry the commission of deputy sheriff and who must work adverse shifts in order to provide 24-hour coverage. They are called upon to provide services and to investigate complaints at any time of the day and have done so using public vehicles. You advise that by necessity they must patrol areas of Hillsborough County for violations of Chapter 83-423, Laws of Florida, and are required to take action if criminal activity is discovered.
Although the HCPTC had no written policy regarding the private use of public vehicles at the time that the Inspector stopped at the Pinellas County towing service at the Director's request, the HCPTC has since adopted one. The HCPTC attorney advises that this written policy reflects the previous practice and custom of the HCPTC concerning use of public vehicles.
The HCPTC vehicle use policy explicitly encourages off duty use of an HCPTC vehicle conditioned upon the HCPTC employee complying with the guidelines set forth, such as driving the vehicle within the geographic limits of Hillsborough County, except when in "hot pursuit" or in the discharge of official duties, being appropriately attired while using the vehicle, monitoring the car radio, and remaining alert and observant for any emergencies that might arise.
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.
For purposes of this provision, the term "corruptly"
'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties.
In previous opinions, we have observed that this statute requires a determination of intent which is extremely difficult to make while rendering an advisory opinion, since intent is to be determined from an examination of all relevant circumstances. On the basis of evidence presented through investigation and hearing, we are able to make a determination of intent when a complaint has been filed concerning a given situation; however, in rendering an advisory opinion, we are hindered by a lack of access to information concerning all the circumstances of the situation as well as to information concerning the credibility of the individuals involved. See CEO 91-28, CEO 82-82 and CEO 77-129.
In your letter of inquiry, you referred to the Attorney General's conclusions in AGO 74-295 and AGO 74-384, in which he recognized that there may be situations in which the use of a public vehicle could personally benefit a public employee incidentally while the overall purpose served by that use would be primarily a public one, such as where the employee drives the vehicle to and from work. We note, however, that the use of the Inspector's vehicle to pick up items at the company's Pinellas County offices and to make bank deposits constitutes a special benefit to the Director rather than an incidental personal benefit of the use of the public vehicle to the Inspector.