CEO 89-41 -- September 14, 1989

CONFLICT OF INTEREST

COUNTY SERVICE DISTRICT ADVISORY COUNCIL MEMBER

SERVING AS A VOLUNTEER WITH FIRE RESCUE SERVICE

To: William Grady, Palm Coast Service District Advisory Council Member (Palm Coast)

SUMMARY:

A prohibited conflict of interest exists where an appointed member of a service district advisory council also serves as a volunteer member of the fire rescue service. Under Section 112.313(7)(a), Florida Statutes, the volunteer is employed as a compensated member of the fire rescue service, which is regulated by the agency he serves as a public officer. No prohibited conflict of interest exists where a fire rescue service volunteer receives no compensation or benefits because such service does not constitute "employment."

QUESTION 1:

Would a prohibited conflict of interest be created were you, an appointed member of a service district advisory council, to serve as a volunteer member of a fire rescue service?

Your question is answered in the affirmative.

In your letter of inquiry, you advise that you are a volunteer member of the Palm Coast Fire Rescue Service and also sit as an appointed member of the seven person Palm Coast Service District Advisory Council. As a member of the Advisory Council, you must from time to time vote to make recommendations to the Flagler County Board of Commissioners regarding budgetary, hiring, and other matters for the Palm Coast Fire Rescue Service. The Advisory Council has no authority to implement policies on its own but, rather, only can make recommendations to the County Commission. Although you are not paid a salary by the Fire Rescue Service, you receive a volunteer stipend of a maximum of $35.00 per month if you answer all calls on your duty days. You advise that the budget for the Fire Rescue Service is over $600,000, of which $22,000 is allocated to volunteer stipends.

The Code of Ethics for Public Officers and Employees 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.

Under this provision, you cannot hold employment or a contractual relationship with the Fire Rescue Service if it is subject to the regulation of your agency, or if such employment or contractual relationship creates a continuing or frequently recurring conflict between your private interests and the performance of your duties as an Advisory Council member or impedes the full and faithful discharge of those duties. In considering this provision we must determine three issues. First, we must define your "agency" for purposes of determining whether it regulates the Fire Rescue Service. The second issue is whether you can be considered to be "employed" by the Fire Rescue Service for purposes of this provision. Finally, we must determine whether the Fire Rescue Service is "regulated" by your agency.

Under the rationale of our previous decisions, an advisory board to a governing body is considered part of that body in determining an individual's "agency" for purposes of the Code of Ethics. In CEO 87-69, we held that where an airport advisory board made recommendations to the city council regarding airport operations, funding, and other areas, an advisory board member's agency was the city council. In your letter of inquiry, you advise that the Palm Coast Service District Advisory Council has no authority of its own but, rather, exists to advise the Board of County Commissioners. Under these circumstances, your agency would be the County Commission for purposes of this provision.

With regard to the question of your relationship with the Fire Rescue Service, we previously have advised that volunteer members of a fire department were "employees" of that department because they did receive compensation and were subject to the direction and control of the fire chief. In re Cornelius Adema, William Hansen, Brian Juntikka, Complaint Nos. 80-42, 80-43, 80-44 (Consolidated), 3 FALR 2090-A (1981). That case stated that a volunteer fireman was an employee even though he did not receive regular wages, but, rather, was paid compensation in the form of a stipend. In CEO 77-69, we advised that a city council member who also served as a reserve police officer was not an employee because he received no compensation and was not covered by worker's compensation or other benefits for his police duties. Under the rationale of these decisions, your compensated service to the Fire Rescue Service would make you an employee of that entity for purposes of the Code of Ethics.

Given the conclusions reached above, we finally must determine whether your agency, the County Commission, regulates the Fire Rescue Service which employs you. In your letter of inquiry, you advise that the Fire Rescue Service is maintained by County taxes and is under the control and direction of the Board of County Commissioners. You state that the County Commission has jurisdiction over the Fire Rescue Service in areas such as budget and hiring of personnel. Under these circumstances, we find that the Fire Rescue Service is regulated by the County Commission.

The Code of Ethics also provides in Section 112.313(10), Florida Statutes, that no employee of an agency shall hold office as a member of the governing board of that agency. Our previous decisions have advised that the intent of this provision is to prohibit a public officer from holding an employment position which is subject to the supervision of his public office. The intent of this provision is not violated here because, although the Advisory Board and the County Commission are one agency for purposes of determining a conflict, the governing board of the Fire Rescue Service is the Commission alone in that it makes all supervisory decisions over operation of the Fire Rescue Service. See CEO 87-69.

Accordingly, we find that a prohibited conflict of interest exists where you are compensated as a volunteer member of the Fire Rescue Service and you also are an appointed member of the Service District Advisory Council. Under the circumstances presented, you are employed by an agency which is subject to the regulation of the agency which you serve as a public officer.

QUESTION 2:

Would a prohibited conflict of interest be created were you to serve without compensation?

Your question is answered in the negative.

You also inquire, in a telephone conversation with our staff, whether a prohibited conflict of interest would exist if you were to accept no compensation for your services. You would not be paid a stipend and would not be covered by worker's compensation or other benefits. As cited in our response to Question 1, CEO 77-69 advised that a reserve police officer who received no compensation did not have an employment relationship with the city and so no conflicting employment existed. In CEO 80-90, we advised that a member of the city council also could serve as the part-time city engineer without compensation or benefits because under these circumstances there was no employment relationship. Consistent with the rationale of these opinions, we find no prohibited conflict of interest would be created were you to serve as a fire rescue volunteer without compensation or benefits and also to sit as a member of the Palm Coast Service District Advisory Council.