CEO 95-33 -- December 1, 1995

CONFLICT OF INTEREST

CITY COUNCIL MEMBER ALSO SERVING ON STATE DEFENSE CONVERSION AND TRANSITION COMMISSION AND CONSULTING WITH ENGINEERING FIRM CONTRACTING WITH CITY

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

SUMMARY:

Section 112.313(7)(a), Florida Statutes, would be violated where a city councilman provides consulting services to an engineering firm that is under contract with the city to provide miscellaneous engineering services, notwithstanding the city charter's separation of the legislative and executive functions of city government. Because the city council is responsible for authorizing the mayor to execute its contracts, and but for that authorization no contract could be entered into on behalf of the City, there is no basis to distinguish between the "agency" of a city council member and the "agency" of a city's mayor for purposes of Section 112.313(7)(a), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created where a city council member who also serves on the State Defense Conversion and Transition Commission consults with an engineering firm which is doing business with the city?

Your question is answered in the affirmative.

Through your letter of inquiry and supplemental information provided to our staff, we are advised that . . . . is a member of the Tampa City Council and, also, that he serves as a member of the State Defense Conversion and Transition Commission. In his private capacity he has been engaged by an engineering firm under a limited contract to perform consulting services involving military base closures. The engineering firm assists local communities affected by base closure with the development of a reuse plan unique to that particular base. You advise that the reuse plan generally involves land use decisions, infrastructure planning, economic and demographic modeling and other engineering applications in which the firm has considerable expertise, and that the City Council member would be a part of the team that would be competing on the engineering firm's behalf at the time a request for proposal is issued by the local jurisdiction. You further represent that the City Council member would not perform consulting services relative to any military base within the Tampa Bay area.

With regard to the City Council member's service on the State Defense Conversion and Transition Commission, it is our understanding that the State Commission was established pursuant to Section 288.971, et seq., Florida Statutes, to advise the Governor and Legislature in the development and implementation of military base reuse and transition policy. We are reminded that in an effort to reduce the size of the nation's military infrastructure and the bases that support it, the Federal Base Closure Commission realigned a number of military bases around the country. As a part of that effort, and in an attempt to minimize the economic dislocation associated with base closures, the federal government established a process designed to facilitate a smooth transition to local ownership of a former military facility. You relate that this "reuse" process is funded with grants from the U.S. Department of Commerce's Office of Economic Adjustment and involves the development of a reuse plan unique to that particular base. Generally, the reuse plan is comprised of land use decisions, infrastructure planning, economic and demographic modeling, and other engineering-related applications in which the engineering firm has considerable expertise. Pre-dating the Commission member's consulting relationship with the engineering firm, the firm was retained by the recognized "local reuse authorities" for Homestead Air Force Base, Cecil Field (near Jacksonville), and the Orlando Naval Training Center. It also is anticipated that the firm will compete in the future to provide services to the Key West Naval Air Station's local reuse authority. All other facilities for which the firm provides similar services are located outside the State of Florida.

You relate that base closure and the efforts to fight the recommendations of the Federal Commission are very different from base reuse. Base reuse, and all of the associated planning involved in that effort, is funded by the Office of Economic Adjustment within the U. S. Department of Commerce, and there is little, if any, involvement in that process by the Florida Commission. However, the State Commission has been instrumental in developing recommendations designed to streamline the permitting processes for former military bases and has worked with the Legislature and Governor to establish a fund designed to assist Florida's ten "at-risk" communities in fighting the recommendations of the 1995 Federal Base Closure Commission.

We are further advised that the engineering firm the City Council member consults with contracts with the City of Tampa to provide engineering services to the City. None of the services the engineering firm provides to the City involve base closure matters. Instead, the firm is among a list of approximately 100 engineering/architectural firms with which the City has contracts to perform technical type services, such as engineering, architectural, surveying, environmental, etc., upon the request of the City and up to a limited dollar amount. In addition to that contract, the firm also has a contract with the City to perform engineering and consultant services relative to a large-scale road widening project, and it is conceivable that the firm may respond to request for proposals issued by the City to perform large-scale, project-type engineering services.

Further, you advise that Tampa's charter establishes that the executive branch of government is comprised of the Office of Mayor and that the legislative branch consists of the City Council. Under the charter, there is a complete separation of executive and legislative authority. It is represented that the charter provides that negotiation of all contracts is exclusively within the purview of the Mayor and that the City Council has no institutional responsibility or authority for negotiation of contracts. You state that the City Council's only involvement with City contracts is through a vote to authorize the Mayor to sign a contract. With that preface, you have asked that we determine whether the City Council member's consulting work with the engineering firm creates a conflict of interest prohibited by the Code of Ethics for Public Officers and Employees.

The applicable provision is Section 112.313(7)(a), Florida Statutes, which states in pertinent 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.

The first part of Section 112.313(7)(a) prohibits a public officer from having a contractual relationship with a business entity which is doing business with the public officer's agency. The second part of Section 112.313(7)(a) prohibits a public officer from having a contractual relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which impedes the full and faithful discharge of his public duties.

In CEO 94-8, we opined that this provision would be violated where a town's mayor was employed by an engineering firm seeking to do business with the town. There, although the argument was made that the engineering firm would actually be contracting with the town's board of aldermen and not the office of mayor, we acknowledged that we had not previously found that the office of mayor is an agency separate and distinct from a municipality's governing board for purposes of the Code of Ethics. In CEO 76-148A, we opined that notwithstanding the Tampa charter's separation of the Mayor's office from the City Council, that Section 112.313(3) would be violated where a City Council member owned a wrecker business and accepted wrecker rotation list calls from the police department for the towing of impounded vehicles paid for by the City. There, we noted that the City Council was required to confirm all mayoral appointments and that all City contracts required the approval of the City Council upon the recommendation of the Mayor. Coupled with the appearance of impropriety that, in our view, transpired where a City Council member transacted business with the City, we were persuaded to strictly construe the doing business with one's agency prohibition contained in Section 112.313(3), Florida Statutes.

Similarly, we do not find a distinction between the "agency" of a Tampa City Council member and the "agency" of the Mayor for purposes of Section 112.313(7)(a), Florida Statutes. We note that it is the City Council which votes to authorize the Mayor to sign contracts and, but for that authorization, the contract could not be executed on behalf of the City. Therefore, for the reasons stated in CEO 94-8, which also appear to be valid here, we hold that Section 112.313(7)(a) prohibits the City Council member from consulting with an engineering firm which is doing business with the City of Tampa, absent the applicability of some statutory exemption.

Because we have concluded that the City Council member cannot consult with the engineering firm without violating Section 112.313(7)(a), Florida Statutes, we have not rendered an opinion about the applicability of the Code of Ethics to his service on the State Defense Conversion and Transition Commission and his consulting work with the engineering firm. Should his circumstances change, he may wish to seek additional guidance from this Commission about the appropriateness of that relationship.

ORDERED by the State of Florida Commission on Ethics meeting in public session on November 30, 1995 and RENDERED this 1st day of December, 1995.

__________________________

William J. Rish

Chairman