CEO 92-39 -- September 3, 1992

CONFLICT OF INTEREST; VOTING CONFLICT

CITY COUNCIL MEMBER EMPLOYED AS

ASSISTANT SCHOOL SUPERINTENDENT

To: Robert A. Rosillo, Counsel for Palm Beach County School Board (West Palm Beach)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a city councilman to serve as an assistant school superintendent. The school district would not be subject to the regulation of the city council, intergovernmental agreements or dealings do not constitute "doing business," and no frequently recurring conflict or impediment to duty would be present.

The councilman would not be prohibited from voting on matters inuring to the special gain of the school district because the district is an "agency" exempted from the voting restrictions of Section 112.3143(3)(a), Florida Statutes. CEO's 81-19, 88-20, 90-43, and 91-31 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were a city council member to be employed as an assistant superintendent of a public school system located in the same county as the city?

Under the circumstances described in this opinion, your question is answered in the negative.

By your letter of inquiry and telephone conversation between you and our staff, we are advised that Lawrence Zabik serves as a member of the City Council of the City of Royal Palm Beach, located in Palm Beach County, and that he has been hired by the School Board of Palm Beach County as an Assistant Superintendent for Support Services. As Assistant Superintendent, you advise, he will be responsible for selection of school sites, acquisition of real property for school sites, construction of schools, selection of architectural services, maintenance of existing school facilities, transportation, and food services. He is a salaried employee under a 12-month contract, reporting directly to the Superintendent ofSchools and conferring with School Board members on issues regarding the operations of departments under his supervision, you advise. The school system departments under the Assistant Superintendent's control are the facility design department, growth management department, transportation department, and food services department. In addition, you advise that each year the School Board assigns students in the Royal Palm Beach area to attend certain schools, and his "department makes such recommendations to the Superintendent."

You advise further that the School Board plans to construct a high school within the City in the near future, that there has been some discussion of acquiring the property for the high school directly from the City or purchasing it directly from the landowners, and that the School Board is currently negotiating an interlocal agreement with the City which will address issues such as the City's providing the School Board with adequate zoning, transferring certain property to the School Board to ensure that the property meets adequate traffic standards, providing for drainage, free water and sewer connections, as well as possible roadway improvements.

You advise that under Chapter 235, Florida Statutes, and applicable sections of the Florida Administrative Code, school districts are exempt from municipal building codes, but not from municipal zoning or land-use regulations. Under City land-use regulations, schools are not exempt from meeting applicable requirements. The City Council would have to make a decision as to whether to change the zoning of the property to provide for a high school. A part of the property would need to be annexed, necessitating a vote of the City Council. The property is currently privately-owned and may be purchased by the School Board from the private owner or the private owner may sell the property to the City who will then sell it to the Board. The City's actual permitting and inspection and other detailed or day-to-day matters regarding zoning, land use, and other "regulatory" matters are handled by its zoning or building department and personnel other than the City Council members themselves.

The Assistant Superintendent's second-in-command heads the facilities design department and does not work in a close physical proximity to the Assistant Superintendent, and School Board staff have been avoiding copying the Assistant Superintendent with memoranda about the high school construction project. The Assistant Superintendent has not been and will not be involved in negotiating the interlocal agreement on behalf of the School Board; it is being negotiated by the second-in-command and yourself as counsel for the School Board.

The School Board is under a mandate to racially-balance public schools in Palm Beach County, and you envision possible conflict between the Board's interests in complying with the mandate and the City Council's likely interests in desiring to maintain neighborhood schools. These duties can likewise be delegated.

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.]

This provision prohibits a public officer or public employee from having or holding any employment or any contractual relationship with any business entity or with any agency which is doing business with or which is subject to the regulation of the employee's or officer's agency. It also prohibits employment or contractual relationships that will create a continuing or frequently recurring conflict between an employee's or officer's private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties.

Under the scenario you present, the Assistant Superintendent would have as his public agency the School Board or School District and, by virtue of his position as City Council member, also have as his public agency the City Council. Therefore, we must initially determine whether the Assistant Superintendent/Council member holds any employment or any contractual relationship with any business entity or agency which is subject to the regulation of or which is doing business with either of his public agencies. As the position of Council member constitutes the holding of an office rather than an employment or contractual relationship (see CEO 81-19), our focus must turn to whether the School Board, the employing agency, is subject to the regulation of or is doing business with the City Council, for the purposes of analyzing your scenario under the first clause of Section 112.313(7)(a).

We find that the School Board would not be subject to the regulation of the City Council by virtue of constructing a school within the City or entering into an interlocal agreement with the City Council regarding the same. While the City Council is involved with the enactment or amendment of zoning or land-use ordinances affecting the proposed high school site, this does not constitute "regulation" for purposes of the first part of Section 112.313(7)(a). See In re John Zerweck, Complaint No. 79-74, 2 FALR 1097A. In addition, since intergovernmental agreements and dealings between governmental entities have generally been found by us not to constitute "doing business" for purposes of the first part of Section 112.313(7)(a), we do not find that such an agreement or land sale as represented by you would constitute "doing business." A purpose of the Code of Ethics is to prevent private gain at public expense, not to prevent dealings between governmental entities. See CEO 90-43 and our opinions cited therein.

Having determined that no conflict exists under the first clause of Section 112.313(7)(a), we must examine whether your scenario violates the second clause of that provision. As stated earlier, that clause prohibits the holding of employment or a contractual relationship that will create a continuing or frequently recurring conflict between a public officer's private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties.

We do not believe that the Councilman's being employed as an Assistant Superintendent would violate the second clause of Section 112.313(7)(a), particularly in view of the delegation you describe. See CEO 88-20, our opinions cited therein, and CEO 91-31.

Voting by the Councilman on measures regarding the School District would not be prohibited by the voting conflicts law, because that law exempts from its prohibitions votes on measures inuring to the gain of an "agency." The voting conflicts law and the definition of "agency" provide:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143(3)(a), Florida Statutes.]

'Agency' means any state, regional, county, local or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university. [Section 112.312(2), Florida Statutes.]

In addition, we find that your scenario would not constitute a "dual employment" in violation of Section 112.313(10), Florida Statutes, because the Councilman does not hold office as a member of the governing board of the School District. That Section provides:

No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his employer while, at the same time, continuing as an employee of such employer.

Since our jurisdiction is limited to interpreting Article II, Section 8, of the State Constitution, and Part III of Chapter 112, Florida Statutes, we cannot address whether the scenario presented herein would violate portions of Chapter 112 outside of Part III. Further, for advice on whether simultaneously holding office as a city councilman and serving as an assistant school superintendent may be violative of the State Constitutional prohibition against dual office-holding found in Article II, Section 5(a), you should contact the Attorney General.

Accordingly, under the facts present in this opinion, we find that no prohibited conflict of interest exists where the subject City Councilman serves as an Assistant School Superintendent.