CEO 85-56 -- August 8, 1985

CONFLICT OF INTEREST

CITY EMPLOYEE AND CITY COUNCIL MEMBER SERVING ON GOVERNING BOARD OF WATER AUTHORITY

To: The Honorable Marilyn Evans-Jones, State Representative, District 33, Melbourne

SUMMARY:

The Code of Ethics for Public Officers and Employees does not prohibit a member of a city council from serving on the governing board of the South Brevard Water Authority which regulates the municipalities transmission and distribution of water. However, Section 112.313(7)(a), Florida Statutes, would prohibit an employee of a regulated municipality from serving on the governing board of the Authority. Such employment would create a continuing or frequently recurring conflict between the Authority member's private interests and the performance of his public duties.

QUESTION 1:

Would a prohibited conflict of interest be created were a city council member to be appointed to the South Brevard Water Authority where the Authority determines the rights and obligations of publicly owned water distribution systems encompassing the municipality?

Your question is answered in the negative.

In your letter of inquiry and accompanying documents you advise that you serve as the Chairman of the Brevard County Legislative Delegation which, in turn, serves as the nominating commission for the South Brevard Water Authority pursuant to Chapter 83-375, Laws of Florida. You also advise that this nominating commission recently has submitted to the Governor the names of its nominees for vacancies on the Authority's governing board, which include, among others, Mr. Ed Bollinger, a member of the West Melbourne City Council. You have further advised by telephone that the City of West Melbourne obtains its water from the only publicly owned water treatment system in south Brevard which is owned by the City of Melbourne.

The above-referenced act creating the Authority gives it full power and authority to implement, finance, and operate a single coordinated program of water supply transmission and distribution in south Brevard County, which encompasses the cities of Melbourne and West Melbourne. Included among the Authority's powers and duties are the power to ration water; to exercise exclusive control and jurisdiction over all water systems within the boundaries of the Authority; to acquire by purchase, gift, or eminent domain, property within the district already devoted to a public use; to enter into water supply agreements with water distribution systems; to fix and collect rates, fees, and other charges to persons and property or both for the use of a water distribution system used and operated by the Authority; and to establish penalties for rates, fees, or charges which become delinquent.

The act further requires the Authority to establish and define all service areas within the district and to develop and mandate water distribution service area rights and obligations of publicly owned water distribution systems within the district. Any proposed or existing condition of service imposed by a publicly owned distribution system is subject to approval by the Authority. The act further authorizes the Authority to establish a district water supply plan which will serve as a basis for the Authority to enter into water supply agreements with each publicly owned water distribution system. Finally, any such system must obtain the approval of the Authority before undertaking any permanent modification, alteration, or improvement to any water treatment facility.

Mr. Robert Massarelli, to whom you have referred our staff for additional information, is the Executive Director of the Authority. He advised our staff by telephone that the Melbourne water system supplies water to certain unincorporated areas as well as to eight municipalities in south Brevard County, including the cities of Melbourne and West Melbourne. He also advised that approximately 74% of the people in south Brevard County are provided with water from the Melbourne water system. He further indicated that the City of Melbourne has a great interest in retaining its present system, although the Authority has the power of eminent domain and could take the Melbourne water treatment plant by condemnation if it were unable to secure a satisfactory water supply agreement with the City.

The Code of Ethics for Public Officers and Employees provides in relevant 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. [Section 112.313(7)(a), Florida Statutes (1983).]

This provision prohibits a public officer from having any employment or contractual relationship with an agency which either is doing business with, or is subject to the regulation of, his agency. It is our view, however, that the subject city council member would hold no employment or contractual relationship with the Authority were he to serve on its governing board as the position of board member is a public office. Likewise, as a city council member he holds a public office rather than a public employment or contractual relationship with the City. In the absence of an employment or contractual relationship with either of the respective agencies under consideration, we find Section 112.313(7)(a), Florida Statutes, inapplicable to the situation under consideration.

Accordingly, we conclude that under the Code of Ethics for Public Officers and Employees membership on the West Melbourne City Council would not bar one from accepting appointment and serving as a member of the South Brevard Water Authority.

You also have inquired as to the applicability of the common law doctrine of incompatibility of offices to this situation. As the Commission on Ethics' advisory jurisdiction is limited by law to the applicability and interpretation of Part III of Chapter 112, Florida Statutes (the Code of Ethics for Public Officers and Employees), we respectfully decline to address this issue. You may wish to request an opinion from the Attorney General on this issue.

QUESTION 2:

Would a prohibited conflict of interest be created were the Water Conservation Program Coordinator for the City of Melbourne to accept appointment and serve as a member of the South Brevard Water Authority?

Your second question is answered in the affirmative.

Materials submitted with your letter of inquiry indicate that in addition to serving on the West Melbourne City Council, Mr. Ed Bollinger is employed as the Water Conservation Program Coordinator of the City of Melbourne. In this capacity he has advised our staff by telephone that he maintains liaison with the South Brevard Water Authority, the St. Johns Water Management District, and the various municipalities in south Brevard County which receive water from the Melbourne water system. His duties include the development of a water conservation program, which includes educational programs in schools and other public places and the development of water conservation literature. Mr. Bollinger works under the supervision of the Assistant City Manager for Public Works and the Administrator of the Melbourne water-wastewater system.

The first clause of Section 112.313(7)(a), Florida Statutes, quoted in response to Question 1, above, would prohibit Mr. Bollinger from serving on the governing board of the Authority while at the same time being employed by the City of Melbourne if the City either is doing business with, or is subject to the regulation of, the Authority. In our view the Legislature has granted substantial regulatory power to the Authority as to water supply transmission and distribution in south Brevard County. Several of these regulatory functions relate directly to publicly owned water distribution systems of the type owned by the City of Melbourne. Under these circumstances, we are of the opinion that the City of Melbourne by which Mr. Bollinger is employed is subject to the regulation of the Authority.

We perceive a significant distinction between the present situation and that in CEO 78-59 (Question 1), in which we found that a surveyor serving on a water management district board had no prohibited conflict in representing clients whose water use was subject to the regulation of the district. Were the subject City employee in the present case appointed to serve on the Authority's governing board, we perceive a likelihood that his personal and private interest in pleasing his fulltime employer occasionally would interfere with his obligation impartially to discharge the duties of the Authority. See Section 112.311(1), Florida Statutes (1983), in which the Legislature declared it to be their intent and policy underlying the Code of Ethics that public officials be both independent and impartial. We do not mean to imply that Mr. Bollinger intentionally would favor his employer; however, we feel that a tendency in that direction would exist even in the absence of any overt partiality. This is the essence of a conflict of interest which the Code of Ethics seeks to avoid. See Section 112.312(6), Florida Statutes (1983).

In addition, the second clause of Section 112.313(7)(a), Florida Statutes, prohibits a public officer from holding any employment 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. Given the substantial interest of the City of Melbourne in its existing water system and facility, it is our opinion that the Respondent's private interest in maintaining a harmonious relationship with his employer would create a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of his public duties were he to serve on the governing board of the Authority.

Accordingly, we find that a prohibited conflict of interest would be created were the subject Water Conservation Program Coordinator to be appointed and serve on the governing board of the Authority.

QUESTION 3:

Would a prohibited conflict of interest be created were the Director of Finance for the City of Melbourne to be appointed to serve on the governing board of the South Brevard Water Authority?

This question is answered in the affirmative.

Another of the Brevard County Legislative Delegation's nominees for appointment to the South Brevard Water Authority is Ms. Amy Williams, Director of Finance for the City of Melbourne. In this capacity Ms. Williams advised our staff by telephone that she is responsible for all revenue collections for the City, including utility billing and collection. Her duties include the preparation of the City's comprehensive annual report and financial statements, grants management, and accounting for all fixed assets. She is hired by and is under the direct supervision of the City Manager in this capacity.

We are of the opinion that the rationale of Question 2, above, is equally applicable to the Director of Finance for the City of Melbourne.

Accordingly, we find that a prohibited conflict of interest would be created under the provisions of Section 112.313(7)(a), Florida Statutes, were the subject Director of Finance to accept appointment to the governing board of the South Brevard Water Authority.