CEO 77-55 -- April 21, 1977

CONFLICT OF INTEREST

COUNTY ATTORNEY SERVING ON BOARD OF DIRECTORS OF NONPROFIT CORPORATION FUNDED IN PART BY COUNTY

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

Prepared by: Bonnie Johnson

SUMMARY:

The Code of Ethics for Public Officers and Employees prohibits a public officer from holding employment or a contractual relationship with a business entity or agency which regulates or does business with his public agency [s. 112.313(7)(a), F. S. 1975] and from being an officer or director of a business entity which does business with his agency [s. 112.313(3), F. S. 1975]. Neither provision is applicable, however, where a county attorney serves on the board of directors of a nonprofit corporation which is funded, in part, by the county, as he holds neither employment nor a contractual relationship with the corporation and because the corporation does not do business with the county.

QUESTION:

Would a prohibited conflict of interest be created were I, a county attorney, to serve on the board of directors and as an officer of a nonprofit corporation which is funded, in part, by the county?

Your question is answered in the negative.

You advise in your letter of inquiry and accompanying materials that the Brevard Council, Inc. (council), is a nonprofit corporation established for the purpose of promoting, coordinating, and supporting an economic development program for Brevard County and planning, organizing, and implementing a program to assist the county and its citizens during the economic adjustments associated with curtailment of federal programs within the county. Pursuant to an agreement with the county executed on April 29, 1976, the council works with county government and with the Brevard Economic Development Council "to effectively coordinate, promote and support a comprehensive economic development program" for the county. By further terms of the agreement, the council performs as an independent contractor, although the county contributes toward the salary plus fringe benefits for one project coordinator in an amount not to exceed $6,600 and provides office space and furniture for the council, a maximum of $2,000 worth of printing services, and inclusion of the council staff under the county's group hospitalization and medical plan. It is further agreed that the county comptroller perform a year-end audit of the council, as required under the terms and conditions of the EDA grant under which the council operates. Council members are appointed by the chairman and approved by the majority of council members present at any regular or special meeting.

The board of directors of the council is comprised of not less than three council members in good standing who are elected to the board by vote of all council members at an annual meeting. Pursuant to the council's bylaws, the board controls and generally manages the affairs and business of the corporation. The board elects from its number all corporation officers. You have advised our staff that you serve as the elected secretary of the council and, in that capacity, keep the minutes of the meetings of the board of directors and of council members; give and serve all notices of the corporation; are custodian of council records and membership books; sign all certificates of membership; and attend to all council correspondence.

The Code of Ethics for Public Officers and Employees provides in relevant part as follows:

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), F. S. 1975.]

The above-quoted provision is not applicable to your situation inasmuch as you have neither employment nor a contractual relationship with the council.

The Code of Ethics further provides as follows:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his 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 his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. . . . [Section 112.313(3), F. S. 1975.]

Although we have previously determined that one acts in a private capacity to sell whenever a business in which he is an officer or director sells, it does not appear from the facts before us that the council either rents, leases, or sells any realty, goods, or services to the county or to any of its agencies. Accordingly, this provision, too, appears to be inapplicable.

We therefore find that no prohibited conflict of interest is created in your serving as an officer and director of the council while simultaneously holding the office of county attorney.