CEO 95-5 -- March 9, 1995
CONFLICT OF INTEREST; VOTING CONFLICT
COUNTY COMMISSIONER EMPLOYED AS CITY FIRE MARSHALL
To: Mr. W. C. "Bo" Pelham, Jr., Fire Marshall, City of Clewiston
No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a city fire marshall and volunteer firefighter to become a member of the county commission. The city would not be subject to the regulation of or doing business with the county, by virtue of an interlocal agreement to provide fire protection services, and no frequently recurring conflict or impediment to the full and faithful discharge of public duties would be created.
However, should the fire marshall become a county commissioner, he would be required to abstain from voting and comply with the other requirements of the voting conflicts law [Section 112.3143(3)(a), Florida Statutes] regarding measures to approve the fire department's annual budget, renew the interlocal agreement, or rework the interlocal agreement. CEO's 93-33, 92-39, and 83-5 are referenced.
Would a prohibited conflict of interest be created under Section 112.313(7)(a), Florida Statutes, were a fire marshall of a city which provides fire protection to a county under an interlocal agreement to be elected to and serve on the county commission?
Your question is answered in the negative.
By your letter of inquiry and additional information provided to our staff, we are advised that you are employed full time by the City of Clewiston (located in Hendry County) as Fire Marshall and that you also serve as a member of the Clewiston Volunteer Fire Department (receiving twenty dollars per fire call from the City when you respond as a "volunteer"). Further, you advise that you are contemplating running for a seat on the Hendry County Commission and you desire to know whether running for or holding a seat on the County Commission while simultaneously serving in your City capacities would constitute a prohibited conflict of interest, particularly in view of the fact that the City and County have entered into an interlocal agreement regarding fire protection.
The agreement, originally entered into in writing in 1979, provides that the agreement "shall be for a one year term commencing October 1, 1979, and shall automatically renew itself for successive one year terms unless terminated as provided hereafter" and that "[e]ither party may terminate this Agreement on the anniversary date thereof giving the other party notice of termination on or before June 1 of any year during which this Agreement is in effect." Further, you advise, the agreement provides for fire protection in certain portions of the County, both within and without the City, provides for operation of the Fire Department by the City, including the hiring of a full time fire marshall (a position you now hold) and the provision of personnel who shall be volunteers, and provides that the Fire Department shall prepare its annual budget which shall be approved by the City and the County. In addition, the agreement provides that "[t]he budget shall provide for the equal division of the expenses of paying the Fire Chief or the fire marshall, including all withholding, FICA, retirement, insurance, etc. and the operating expenses of the Fire Department," but, you advise, in 1987 the County agreed to fund two thirds of the operating expenses of the Fire Department. In your position as Fire Marshall, you advise, you review plans for new construction and conduct inspections on facilities to determine the cause and origin of fires.
Section 112.313(7)(a), Florida Statutes, is the portion of the Code of Ethics which is applicable to your inquiry. It 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.
We must analyze your situation to determine if your serving as City Fire Marshall or as a "volunteer" City firefighter (employments or contractual relationships with the City and/or the City Fire Department) would violate Section 112.313(7)(a) were you to become a County Commissioner. The question of whether your serving as a County Commissioner would conflict with your duties as City Fire Marshall/City volunteer firefighter does not come within the scope of Section 112.313(7)(a), since serving as a County Commissioner would constitute the holding of an office and thus would not constitute employment or a contractual relationship. See, for example, CEO 92-39.
We find no conflict under the first part or clause of Section 112.313(7)(a) because we see no indication that the City would be subject to the regulation of the County, by virtue of the interlocal agreement or otherwise, and because we generally have found that interlocal agreements between governmental entities do not constitute "doing business." See, for example, CEO 93-33 and CEO 83-5. In addition, following our precedent of CEO 83-5, an opinion which is very similar factually to your situation and which involves a city council member being employed by the county as director of its civil defense office and its emergency medical service where there is an interlocal agreement between the city and the county, we find that your employment with the City while serving as a County Commissioner would not create a continuing or frequently recurring conflict between your private interests as a City employee and your public duties as a County Commissioner and would not impede the full and faithful discharge of your public duties under the second part or clause of Section 112.313(7)(a). Similar to CEO 83-5, while the interlocal agreement in your scenario provides for a Fire Marshall and while you have certain duties in your City positions, it does not appear that those responsibilities conflict with the interests of the County. See also CEO 92-39 (city council member serving as assistant school superintendent), an opinion involving an interlocal agreement in which we found no prohibited conflict.
In addition, notwithstanding your representation to us that your pay and other benefits derived from your position as Fire Marshall are not affected by the interlocal agreement, it appears to us that you would be faced with a voting conflict requiring your abstention, declaration, and filing of CE Form 8B should measures to approve the Fire Department's budget or measures to renew, rework, or otherwise affect the interlocal agreement come before the County Commission. Therefore, should you be elected to the County Commission and should such measures come before the Commission, you must comply with Section 112.3143(3)(a), Florida Statutes, which provides:
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 or loss; which he knows would inure to the special private gain or loss 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 or loss 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.
Accordingly, we find that a prohibited conflict of interest would not exist were you to be elected to the Hendry County Commission, but that as a Commissioner you must comply with the voting conflicts law regarding measures involving the Fire Department or the interlocal agreement.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 9, 1995, and RENDERED this _____ day of March, 1995.
R. Terry Rigsby