CEO 92-55 -- December 3, 1992
CONFLICT OF INTEREST
COUNTY FIREFIGHTERS WORKING FOR
OTHER FIREFIGHTING ORGANIZATIONS
To: Mary A. Marshall, Alachua County Attorney (Gainesville)
SUMMARY:
A prohibited conflict of interest would be created under the first portion of Section 112.313(7)(a), Florida Statutes, where County firefighters are employed by volunteer fire departments (VFD's) doing business with the County. The "sole source" exemption contained in Section 112.313(12)(e), Florida Statutes, does not appear to apply to the situation, as there is no indication that the VFD's are the sole source of firefighting services available in the County. Where County firefighters are employed part‑time by municipalities contracting with the County to provide firefighting services, a prohibited conflict of interest would exist under the second portion of Section 112.313(7)(a), Florida Statutes. Where County firefighters are unpaid volunteers for VFD's or municipalities contracting with the County, no conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, because no employment or contractual relationship would exist. CEO's 92-39, 90-43, 89-56, 80-29, 79-25, and 76-2 are referenced.
QUESTION 1:
Would a prohibited conflict of interest be created were firefighters employed by the County to be employed during their off‑duty hours as firefighters for municipalities or volunteer fire departments contracting with the County to provide fire protection services?
Under the circumstances presented, Question 1 is answered in the affirmative.
In your letter of inquiry and through discussions between our staff and County staff, we are advised that Alachua County provides fire protection services within the unincorporated areas of the County. You relate that the County has its own employees who serveas firefighters in some areas and that it also contracts with certain municipalities and volunteer fire departments (VFD's) to provide fire protection services in other areas. You question whether a prohibited conflict of interest would be created were County‑employed firefighters to be employed during their off‑duty hours by a municipality or a VFD under contract with the County.
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 (1991).]
The first portion of this provision prohibits a public employee from having an employment or contractual relationship with a business entity which is either doing business with or regulated by his public agency. The second portion of the statute prohibits a public employee from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which impedes the full and faithful discharge of his public duties.
As you have pointed out, CEO 89-56 is factually on point to the situation involving VFD's, which are private, nonprofit corporations providing fire protection services. In that opinion we opined that Section 112.313(7)(a), Florida Statutes, would be violated where county‑employed firefighters also were employed by VFD's contracting with the county, because the VFD's would be considered business entities doing business with the County. Based upon our rationale in CEO 89-56, we are of the view that a prohibited conflict of interest would be created where County firefighters are employed part‑time by volunteer fire departments contracting with the County to provide fire protection services in unincorporated areas of the County.
You have questioned whether Section 112.313(12)(e), Florida Statutes, might be applicable to this situation. This provides an exemption where:
The business entity involved is the only source of supply within the political subdivision of the officer or employee and there is full disclosure by the officer or employee of his interest in the business entity to the governing body of the political subdivision prior to the purchase, rental, sale, leasing, or other business being transacted.
In CEO 79-25, we determined that this provision was applicable to a situation where a town mayor was a volunteer with a VFD contracting with the town to provide fire protection services. There, the town had no source of firefighting services other than the VFD. A similar determination was also made in CEO 86-29, where a city was prohibited by a referendum from contracting with any entity other than the subject VFD. However, here, as in CEO 89-56, it would not appear that the VFD's are the sole source of fire protection services within County, as there has been no determination that only one VFD could deliver fire protection services in accordance with the County's requirements, including type and level of service and response time. Thus, we cannot conclude that Section 112.313(12)(e), Florida Statutes, is available to exempt a conflict of interest created by County firefighters employed part‑time by VFD's.
With regard to the County firefighters also employed by municipalities providing fire protection services under contract with the County, we do not consider the municipalities and the County to be "doing business" for purposes of Section 112.313(7)(a), Florida Statutes, under the rationale contained in CEO 92-39 and CEO 90-43. We previously have opined that Section 112.313(7)(a) is not to be employed to restrict that business which is transacted between governmental entities, but to prohibit private gain other than remuneration provided by law. CEO 76-2, Question 9. Accordingly, it is our view that no prohibited conflict of interest exists under the first portion of Section 112.313(7)(a), Florida Statutes, where County firefighters work part‑time for municipalities.
However, under the second portion of Section 112.313(7)(a), Florida Statutes, we are concerned that such dual employment could create a continuing or frequently recurring conflict of interest between the part‑time municipal firefighter's private interests and the performance of his County duties, or an impediment to the full and faithful discharge of his County duties. We are advised by County staff that off‑duty County firefighters are frequently subject to recall when major incidents arise or when there are staffing needs. An off‑duty County firefighter who is called back to work by the County would be required to report to duty or face disciplinary action. Should County firefighters be on‑duty at their part‑time municipal position, their recall could leave the municipality uncovered and thereby prevent the municipality from providing the firefighting services for which the County contracted. You have also expressed a concern that where County employees are of a higher rank in their part‑time position than they are as County firefighters, chain‑of‑command disputes could arise when the municipal agencies employing County firefighters respond to incidents in the unincorporated areas of the County and where County units are also on the scene. Finally, your biggest area of concern involves the negotiating of the County contract with the municipal agencies. You have indicated that none of the County employees who are working part‑time for municipalities are formally involved in the negotiating process or in administering the contract on behalf of the County. However, they do possess information about County funding and budgetary resources, as well as staffing and equipment needs. A problem has arisen when they use this information in representing the municipal firefighting agency in contract talks with the County, where, in the County's view, they have negotiated against the best interests of the County that employs them in favor of the best interests of their part‑time employer. Although there is no indication that their actions have contravened Section 112.313(8), Florida Statutes, which prohibits the disclosure or use of information not available to the general public gained by reason of one's official position for his personal gain or benefit or the personal gain or benefit of any other person or business entity, we are concerned that the situation you have described would present an impediment to the full and faithful discharge of the County firefighters' duty to their primary employer. Thus, we conclude that based upon these circumstances a prohibited conflict of interest is created under the second portion of Section 112.313(7)(a), Florida Statutes.
Accordingly, we find that a prohibited conflict of interest would be created under the first portion of Section 112.313(7)(a), Florida Statutes, where County firefighters are employed by VFD's doing business with the County. Where County firefighters are employed part‑time by municipalities contracting with the County to provide fire protection services in certain unincorporated areas of the County, a prohibited conflict of interest would exist under the second portion of Section 112.313(7)(a), Florida Statutes.
QUESTION 2:
Would a prohibited conflict of interest be created were firefighters employed by the County to be unpaid volunteers during their off‑duty hours for a municipality or volunteer fire department that contracts with the County to provide fire protection services?
Question 2 is answered in the negative.
You have questioned whether the County firefighters could be unpaid volunteers for either VFD's or municipalities contracting with the County without creating a prohibited conflict of interest. As noted in CEO 89-56, where county employees did not receive compensation from a VFD, they were not considered to be employees of the VFD. See also CEO 80-29.
Although you have expressed a concern that such volunteers often have risen to leadership positions within the VFD's or municipalities and are involved in the negotiations between the County and the municipality or VFD, we previously have opined that where they do not receive compensation, no employment or contractual relationship exists under Section 112.313(7)(a), Florida Statutes. However, as noted in our response to Question 1, County employees must, in accordance with Section 112.313(8), Florida Statutes, refrain from disclosing or using information not available to the general public and gained by reason of their County employment for either their personal gain or benefit or the personal gain or benefit of any other person or business entity.
Accordingly, we find that no prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where County firefighters are unpaid volunteers for VFD's or municipalities contracting with the County, because no employment or contractual relationship would exist under those circumstances.