CEO 96-30 -- December 3, 1996

 

CONFLICT OF INTEREST

 

COUNTY COMMISSIONER SERVING ON BOARD OF DIRECTORS

OF NONPROFIT CORPORATION CONTRACTING WITH COUNTY

TO PROVIDE MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES

 

To:      R. A. ABuzzy@ Green, Bradford County Attorney (Starke)

 

SUMMARY:

 

No prohibited conflict of interest is created under Section 112.313(3), Florida Statutes, where a county commissioner sits on the board of directors of a nonprofit corporation providing mental health and substance abuse services to the county.  As the current year=s contract was entered into prior to the county commissioner=s qualification for and election to the county commission, it would be grandfathered-in pursuant to Section 112.313(3)(b), Florida Statutes.  Future years= contracts also would not violate Section 112.313(3), Florida Statutes, inasmuch as the county commission has a seat on the corporation=s board of directors and appointed the commissioner to fill that seat as its designee.  Further, since the commissioner is not compensated for his service on the corporation=s board of directors, he would not have an employment or contractual relationship with it for purposes of Section 112.313(7)(a), Florida Statutes.

 

QUESTION:

 

Would a prohibited conflict of interest be created were a newly elected county commissioner to continue to serve on the board of directors of a nonprofit corporation contracting with the county to provide mental health and substance abuse services?

 

Your question is answered in the negative under the circumstances presented.

 

In your letter of inquiry and through other information provided by you to our staff, we are advised that you seek this opinion on behalf of a newly elected member of the Bradford County Board of County Commissioners, Herman Johnson.  Prior to Mr. Johnson=s election to office, the County Commission appointed him to the board of directors of a private, nonprofit corporation as its designee to the board.  We are advised that the corporation, by annual contract, provides mental health and substance abuse services to the County.  Although the current contract was approved prior to the Commissioner=s taking office, you question whether the Commissioner can continue to serve on the corporation=s board of directors without violating the Code of Ethics for Public Officers and Employees.

There are two provisions of the Code of Ethics which are implicated by your inquiry, the first of which is Section 112.313(3), Florida Statutes.  It provides:

 

DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer=s or employee=s spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer=s or employee=s spouse or child, or any combination of them, has a material interest.  Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer=s or employee=s own agency, if he or she is a state officer or employee, or to any political subdivision of any agency thereof, if he or she is serving as an officer or employee of that political subdivision.  The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business or when such offices are on property wholly or partially owned by the legislator.  This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a)  October 1, 1975.

(b)  Qualification for elective office.

(c)  Appointment to public office.

(d)  Beginning public employment.

[Section 112.313(3), Florida Statutes (1995).]

 

Section 112.313(3) prohibits a public officer from acting in his public capacity to purchase services for his agency from a business entity in which he is an officer, partner, director, or proprietor.  However, it expressly does not affect contracts entered into prior to the officer=s qualification for elective office.  See  Section 112.313(3)(b), Florida Statutes.  Therefore, with regard to the present contract with the corporation, Section 112.313(3) is not violated by the Commissioner=s continued service on the corporation=s board of directors.  See CEO 84-10, Question 2.

As for any future contracts between the corporation and the County Commission, CEO 84-10 is also pertinent.  In that opinion, we recognized that there was a unity of interests where a port authority commissioner was the executive director of a nonprofit corporation of which the port authority was a member, sat on its board of directors, and provided funding.  That opinion applied Section 112.316, Florida Statutes, to find no conflict under those circumstances.[1]  See also CEO 84-63.  Analogously, the County Commission has designated the Commissioner, before he was elected to office, to occupy a seat on the board of directors.  Further, the Commissioner is not compensated for his service on the corporation=s board of directors and does not appear to be in a position to further his own interests.  Instead, it appears that he is seated on the board of directors to represent the County=s interests.  For these reasons and under these circumstances, we are of the view that Section 112.313(3) would not be violated where a county commissioner sits on the board of directors of a corporation providing services under contract to the county.

The situation also implicates Section 112.313(7)(a), Florida Statutes, which restricts employment or contractual relationships with business entities doing business with one=s agency.  However, Section 112.313(7)(a) is not implicated by the foregoing situation because the Commissioner receives no compensation for his service on the organization=s board of directors.  Our opinion precedent recognizes that there can be no employment or contractual relationship for purposes of Section 112.313(7)(a) where the public officer receives no compensation for his service on the organization=s board of directors.  See CEO 91-29, Question 2.

Accordingly, under the circumstances presented we find that no prohibited conflict of interest is created where a county commissioner serves on the board of directors of a nonprofit corporation providing mental health and substance abuse services, by annual contract, to the county.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 3, 1996 and RENDERED this 5th day of December, 1996.

 

 

__________________________________

Mary Alice Phelan

Chair

 


[1] Section 112.316, Florida Statutes, provides:

Construction.--It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his or her duties to the state or the county, city, or other political subdivision of the state involved.