CEO 96-25 -- August 29, 1996

CONFLICT OF INTEREST

CANDIDATE FOR COUNTY COMMISSIONER

SIGNING BINDING CONTRACT CONTAINING CAMPAIGN

PROMISES AND PENALTY CLAUSE

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

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a candidate for county commissioner to enter into a contract with a political committee that provides that, in exchange for the committee=s endorsement of the candidate, the candidate if elected would take certain actions in his official capacity and not take other specified actions and that if he voted in violation of the contract he would be liable to the committee in the amount of $1,000 for each vote that breached the contract. The contract would present a continuing or frequently recurring conflict between the official=s private interests and his public duties.

QUESTION:

Would a prohibited conflict of interest be created were a candidate for county commissioner to enter into a contract with a political committee that provides that, in exchange for the committee=s endorsement of the candidate, the candidate (after being elected as a commissioner) would take certain actions in his official capacity and not take other specified actions and that if the commissioner were to vote in violation of the contract he would be liable to the committee in the amount of $1,000 for each vote that breached the contract?

Under the circumstances presented, your question is answered in the affirmative.

In your letter of inquiry, you advise that you represent . . . and . . . , each of whom is a candidate for election to the Seminole County Board of County Commissioners. You also advise that a political committee has proposed that Commission candidates execute a document entitled AContract With The County.@

The document, which is drafted in form as a binding contract, provides that, in exchange for the committee=s endorsement of the candidate, the candidate would take certain actions in his or her official capacity and not take other specified actions, principally on finance and budgetary matters but also regarding term limits, charter amendments, and sun-setting county ordinances. In the event of a breach (a failure by the elected official to vote in accordance with the promises contained in the contract), the contract provides that an arbitration committee will be selected that can award damages in the amount of $1,000 for each vote that breached the contract. The arbitration award would be enforced through the courts, with the prevailing party being entitled to recover attorney=s fees and costs. The final version of the contract also contains the following language:

The candidate agrees that the endorsement is the only consideration from the Contractors and that the Contractors will not make any campaign contribution to the Candidate and there is no agreement, expressed or implied, regarding how the Contractors will cast their personal votes in the election.

The Code of Ethics contains the following limitation on contractual relationships:

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 or she 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 or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]

Assuming that the contract is binding and enforceable through the courts (as the document clearly intends), the question arises whether the contract would create a continuing or frequently recurring conflict between private interests and the performance of public duties or would impede the full and faithful discharge of public duties. In this respect, it should be noted that the Legislature=s statement of intent behind the Code of Ethics specifies that Apublic officials be independent and impartial@ and that Ano officer . . . of a county . . . shall have any interest, financial or otherwise, . . . or incur any obligation of any nature which is in substantial conflict with the proper discharge of his or her duties in the public interest.@ Section 112.312(1) and (5), Florida Statutes. In our view, a public official who is a party to the contract has entered into a contractual relationship that is intended to and does create a continuing or frequently recurring conflict between private interests and public duties. The official=s private interest in avoiding a possible $1,000 penalty would make it, and clearly is intended to make it, as difficult as possible to adopt any alternative to the actions specified in the contract. The Legislature has defined Aconflict of interest@ to means a situation in which regard for a private interest tends to lead to disregard of a public duty or interest. Section 112.312(8), Florida Statutes. Here, regard for one=s private financial interests would tend to lead to disregard of one=s public duty to Abe independent and impartial.@

The problem is not with the subject of the campaign promises made in the document; whether the public policies described in the contract are appropriate for the County is a matter to be determined by the Board of County Commissioners and the people of the County, not by the Commission on Ethics. Rather, the problem is that the contract creates a personalized financial incentive directly related to actions taken in an official capacity. Although the policies described in the document are matters of community-wide concern and do not appear to benefit the political committee or any of its members personally, the official=s personal financial interests become directly involved at the point that the contract seeks to penalize any deviation from the promises made by the candidate. The Code does not prohibit a public official from taking and publicly announcing a position on any issue. However, the Code does prohibit that official from entering into a contract that would require the official to take a position on an issue. In our view, if the subject contract is not prohibited as presenting a conflict of interest, then neither would a contract, for example, between a developer and a candidate that provides for the developer=s endorsement during the election expressly conditioned upon the promise of rezoning the developer=s property, with the developer paying the candidate $1,000 for each vote in favor of the agreed-upon rezoning.

The Code of Ethics also contains the following provision regarding the solicitation and acceptance of something of value:

SOLICITATION OR ACCEPTANCE OF GIFTS.‑‑No public officer, employee of an agency, local government attorney, or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, local government attorney, or candidate would be influenced thereby. [Section 112.313(2), Florida Statutes.]

In CEO 75-181, we advised as follows:

Campaign contributions are a special class of gifts permitted elsewhere by law, but limited in amount. Generally, we do not believe the Legislature intended a campaign donation which falls within the prescribed dollar limits to be violative of the Code of Ethics. We can envision instances in which they would, however, such as a case in which the gift was given based upon an agreement or understanding that official conduct would be influenced thereby.

See also CEO 78-20. In other words, we have taken the position that under Section 112.313(2), Florida Statutes, a candidate for public office may not reach an agreement with a potential campaign contributor that the candidate will vote in a particular manner if the contributor agrees to provide a campaign contribution. Because we are of the opinion that the subject contract would be violative of Section 112.313(7), we do not reach the question of whether the endorsement of a candidate by a political committee would constitute something of value to the recipient, in the nature of a favor or service, that could violate Section 112.313(2).

Finally, even if we were to conclude that the contract is not prohibited by the Code of Ethics, another provision of the Code would make the contract=s provisions ineffectual. Section 112.3143(3)(a), Florida Statutes, provides:

No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(3); or which he or she 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 the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her 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.

In the case of In re Manuel Avila, Jr., Comm. on Ethics Compl. No. 90-125 (9/18/91), we concluded that a city council member was prohibited by this statute from voting on a zoning measure when he and others had solicited funds from the applicant in exchange for their favorable votes, intending to share in the proceeds of the solicitation. Section 112.3143(3) prohibits a local official from voting on a measure that either inures to the official=s special private gain or loss. Therefore, we conclude that under Section 112.3143(3) a commissioner who has signed the contract would be prohibited from voting on any of the matters addressed in the contract because the commissioner would stand to lose personal funds depending on how he voted.

Accordingly, we find that a prohibited conflict of interest would be created were a candidate for county commission to enter into a contract with a political committee that provides that, in exchange for the committee=s endorsement of the candidate, the candidate if elected would take certain actions in his official capacity and not take other specified actions and that the candidate would be liable to the committee in the amount of $1,000 for each vote that breached the contract.

ORDERED by the State of Florida Commission on Ethics meeting in public session on August 29, 1996, and RENDERED this 3rd day of September, 1996.

_________________________________

Mary Alice Phelan

Chair