CEO 94-36 -- September 1, 1994

CONFLICT OF INTEREST

COUNTY ADVISORY BOARD FOR PERSONS WITH DISABILITIES MEMBERS

EMPLOYED BY OR CONTRACTING WITH ENTITY

DOING BUSINESS WITH COUNTY

To: Ms. Rebecca L. Kay, Assistant County Attorney (Ft. Lauderdale)

SUMMARY:

Prohibited conflicts of interest would exist under Section 112.313(7)(a), Florida Statutes, if the chairperson of a county advisory board is employed by an entity which may enter into a contract with the county, and if the secretary of the same advisory board is a subcontractor under the same contract. However, the county commission may elect to waive the conflicts by following the procedure contained in Section 112.313(12), Florida Statutes. No determination can be made under the circumstances as to the applicability of other provisions of the Code of Ethics, particularly Sections 112.313(6) or 112.313(8), Florida Statutes. CEO's 92-43, 91-26, 89-25, 89-8, 88-55, 87-38, 85-55, 82-51, and 77-178 are referenced.

QUESTION:

Would a prohibited conflict of interest exist where the Chairperson of the Broward County Advisory Board for Persons with Disabilities is employed by a private, nonprofit corporation which may enter into a contract with the County, and where the Advisory Board's Secretary contracts with the same corporation to provide services under the contract?

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

We are advised that you seek this opinion on behalf of Ms. Julie M. Shaw and Mr. Dan Murphy, Chairperson and Secretary, respectively, of the Broward County Advisory Board for Persons with Disabilities (Advisory Board). You relate that the Broward County Board of County Commissioners created the Advisory Board for advice on matters pertaining to the status and welfare of disabled and handicapped persons in Broward County; in performing this function, the Advisory Board is staffed by and coordinates with the County's Office of Equal Opportunity. In the past year, County staff have conferred with members of the Advisory Board concerning the County's expenditure of handicapped parking fines which, pursuant to County ordinance, are to be used in part to conduct public awareness programs concerning physically handicapped persons. Subsequently, the Advisory Board Chairperson corresponded with staff suggesting that the County issue a request for proposal (RFP) to provide quarterly educational forums on the Americans with Disabilities Act to small retail businesses and disabled consumers. The County acted upon this suggestion, and in February 1994 it advertised for letters of interest from prospective providers. During this procurement process, County administrators requested that the Advisory Board designate one of its members to provide the County with technical advice. The designee, the Advisory Board's Vice-Chair, worked with County staff on the project and attended and participated in most of the meetings of the selection and negotiating committee, although he did not have a vote and was not considered to be a member of that committee.

We further are advised that in December 1993 the Advisory Board Chairperson became employed as a government relations director by a private, nonprofit corporation serving paralyzed veterans. In February, when the County issued its RFP, her employer was one of the six responders to that solicitation. You relate that in its response her employer indicated an intent to subcontract a portion of the training project to another Advisory Board member, the aforementioned Secretary.

After the six responses were received and evaluated, the proposers were requested to make presentations to the County's selection and negotiation committee assigned to the project, which in this case consisted of the Director of the Office of Equal Opportunity, the Director of Children's Services, and the Director of Urban Affairs. The Advisory Board Chairperson, as an employee of the private, nonprofit corporation, was one of the participants involved in making the presentation before the selection and negotiation committee. After the various presentations, the selection and negotiating committee ranked the proposers, with the employer of the Advisory Board Chairperson being ranked first. However, because concerns have been raised about the ethical propriety of the County's proposed contract with an entity employing one member of the Advisory Board and intending to subcontract with another, the matter has been held in abeyance and those involved have requested that we issue a formal opinion addressing the situation.

The applicable provision of the Code of Ethics for Public Officers and Employees is Section 112.313(7)(a), Florida Statutes, which 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.

The first part of this statute prohibits a public officer from having an employment or contractual relationship with a business entity which is doing business with his or her agency. It also prohibits a public officer from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between his or her private interests and the performance of public duties, or which impedes the full and faithful discharge of public duties.

For purposes of the standards of conduct in the Code of Ethics, a "public officer" is defined to include "any person elected or appointed to hold office in any agency, including any person serving on an advisory body." Section 112.313(1), Florida Statutes. The Code of Ethics defines the term "advisory body" as:

[A]ny board, commission, council, or authority, however selected, whose total budget, appropriations, or authorized expenditures constitute less than 1 percent of the budget of each agency it serves or $100,000, whichever is less, and whose powers, jurisdiction, and authority are solely advisory and do not include the final determination or adjudication of any personal or property rights, duties, or obligations, other than those relating to its internal operations. [Section 112.312(1), Florida Statutes (1993).]

Because it appears from our review of the Broward County Code, particularly Article IV, Sec. 162-88 and Sec. 162-94, that this particular Advisory Board's functions do not include the final determination or adjudication of any personal or property rights, duties, or obligations, we conclude that the Broward County Advisory Board for Persons with Disabilities is an "advisory body" for purposes of the Code of Ethics. On the other hand, while we need not reach a conclusion about any other County board in the context of this opinion, it would appear that those boards whose duties do include the adjudication of rights would not be considered to be "advisory bodies" for purposes of the Code of Ethics, notwithstanding the fact that some of their responsibilities may well include acting in an advisory capacity to another governmental entity. See, for example, CEO 89-25, CEO 89-8, CEO 88-55, and CEO 87-38.

The next issue, then, is what we consider to be the "agency" of members of the Broward County Advisory Board for Persons with Disabilities. In CEO 91-26, we reiterated our view that in determining an individual's "agency" for purposes of the Code of Ethics, an advisory board to a governing body is a part of that body. Therefore, we conclude that the Broward County Commission is the "agency" of individuals serving on the Advisory Board for Persons with Disabilities. Referring to the definition of "public officer," above, if each "advisory body" were an "agency," it would not have been necessary to specify that "any person appointed to hold office in an agency includes "any person serving on an advisory body." In our view, an advisory body does not constitute a separate agency of government; instead it is a part of a larger government unit that exercises a governmental function. One "agency" might consist of, for example, the County Commission and all of the solely advisory bodies formally established to provide it with advice and recommendations.

With that as a preface, Section 112.313(7)(a) would seemingly prohibit the Advisory Board Chairperson from having an employment relationship with a business entity which is doing business with the Broward County Commission. However, Section 112.313(12), Florida Statutes, contains an exemption from this prohibition where, in this case, the County Commission votes to waive a conflict on the part of an advisory board member by a two-thirds majority. Thus, if the County Commission follows this procedure there would be no ethical prohibition to the Advisory Board Chairperson's employment with the private, nonprofit organization contracting with the County. See CEO 91-26, CEO 85-55, CEO 82-51, and CEO 77-178 for further information about this exemption.

Concerning the Advisory Board Secretary who may perform services under the contract as a subcontractor, Section 112.313(7)(a) likewise prohibits him from having a contractual relationship with a business entity which is doing business with the County. Again, however, pursuant to Section 112.313(12), the County Commission may vote by two-thirds majority to waive the existence of a conflict if it deems it appropriate to do so.

Your inquiry also implicates several other provisions of the Code of Ethics, including Sections 112.313(6) and 112.313(8), Florida Statutes, which provide:

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.

DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity.

Section 112.313(6) prohibits public officers from using or attempting to use their official positions to secure a special privilege or benefit for themselves or others, where their actions are undertaken with a wrongful intent and in a manner which is inconsistent with the proper performance of public duties. See Section 112.312(9), Florida Statutes, defining the word "corruptly." Section 112.313(8) prohibits public officers from disclosing or using information not available to the general public and gained by reason of their official positions for their personal gain or benefit or for the personal gain or benefit of any other person or business entity. We generally are reluctant to examine past conduct in the context of an advisory opinion and make a determination as to whether the Code of Ethics has been violated. This is particularly true with Section 112.313(6), because this provision requires an examination of intent which we cannot undertake in this setting. See CEO 92-43. Therefore, we render no opinion as to whether the Advisory Board Chairperson may have misused her position in initially suggesting that the County contract for quarterly educational forums. Nor are we able to determine in this framework whether either Advisory Board member disclosed or used information not available to the general public and gained through their service on the Advisory Board which, in turn, enabled the top-ranked proposer to be selected. Presumably, this particular proposer had no competitive advantage over other proposers not employing or contracting with other members of the Advisory Board, and we note that neither Advisory Board member had any involvement in the selection process.

Accordingly, although a conflict of interest would exist under Section 112.313(7)(a), Florida Statutes, the Broward County Commission may elect to waive the conflict by following the procedures contained in Section 112.313(12), Florida Statutes. If the County Commission waives the conflict, the Advisory Board for Persons with Disabilities Chairperson may be employed by an entity contracting with the County and the Advisory Board's Secretary may contract with that entity.