CEO 98-6 -- March 5, 1998
CONFLICT OF INTEREST
CITY COUNCIL MEMBER'S PUBLICATION
SELLING ADVERTISING TO CITY
To: Matt E. Dannheisser, Gulf Breeze City Attorney
SUMMARY:
A prohibited conflict of interest would be created under Section 112.313(3) and Section 112.313(7)(a), Florida Statutes, were a city council member's magazine to advertise the city's municipal fishing pier. Inasmuch as the magazine is not the only publication distributed free of charge within the city which targets transient tourists who would be inclined to utilize the fishing pier, the "sole source" exemption contained in Section 112.312(12)(e), Florida Statutes, does not apply. CEO’s 77-125, 77-127, 78-17, 78-24, 79-83, 89-65, and 90-24 are referenced.
QUESTION:
Would a prohibited conflict of interest under Sections 112.313(3) and 112.313(7)(a), Florida Statutes, be created were a city to advertise its municipal fishing pier in a magazine published by a city council member?
Under the circumstances presented, your question is answered in the affirmative.
By your letter of inquiry, two additional items of correspondence from you to our staff, and copies of two publications supplied by you to our staff, we are advised that Richard M. Outzen, Jr. serves as a member of the City Council (hereinafter "member") of the City of Gulf Breeze (hereinafter "City" or "Gulf Breeze"). In addition, we are advised that the member is the publisher of a local tourism magazine (hereinafter "publication A")[1] which, you advise further, is published monthly, touts local attractions, and is typically available free at local restaurants and lodging facilities. Further, you advise that to the knowledge of you, the member, and the City Manager,[2] "[publication A] is the only magazine of its kind in this area," notwithstanding the existence of other sources of general advertising in the area (e.g., newspapers, television, and radio).
Additionally, you advise that the City is separated by a body of water from and is located approximately three miles south of the City of Pensacola, of which it is a suburb; that an original bridge connecting the two cities was abandoned in the middle nineteen sixties, when it was replaced by the existing bridge; that the middle section of the abandoned bridge was removed, the northern portion conveyed by FDOT to Escambia County (the county in which Pensacola is located), and the southern portion was conveyed to Santa Rosa County (the county in which Gulf Breeze is located); and that Santa Rosa County subsequently leased the southern portion to the City for use in operating a municipal fishing pier, which the City has operated for many years, charging fishermen a fee to enter upon the pier. Also, you advise that for many years Escambia County's portion of the bridge was not utilized, consequently fell into disrepair, and was closed to public use for a time; that recently Escambia County entered into a lease with a private company to repair its portion of the bridge and commence operating it as a fishing pier in the same manner as the City operates the southern portion of the bridge; that in an effort to generate customers for the northern pier, the company contacted publication A; that the member/publisher then contacted the City's Manager advising the Manager that publication A would offer the same or better advertising arrangements to the City regarding its fishing pier as would be provided to its fishing pier competitor (the company operating the northern/Escambia County portion of the bridge); and that publication A has indicated that if the City advertises in publication A that publication A will not accept advertisements from the City's pier competitor, but that it will advertise the competitor if the City's advertising is not accepted due to any findings of this Commission that the situation would be conflicting.
Further, in the two additional items of correspondence provided to our staff, you advise that publication A includes feature articles about matters of local interest, is available in local hotel and motel rooms, is intended to be removed and taken by guests and replaced by cleaning staff, and focuses on transient tourists. Also, you advise that there are several "monthly newsprint publications of community news" that also are available to tourists within the City, and that one of these publications ("publication B")[3] "is perhaps closest in nature to [publication A]." Also, you advise that although publication B contains some information regarding local tourist attractions, "its stated purpose is to be a 'community publication for Gulf Breeze and the Beaches'", and that, most importantly in your view, publication B is not available in hotel and motel rooms.
The Code of Ethics for Public Officers and Employees provides in relevant part:
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.]
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 or she 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 or her private interests and the performance of his or her public duties, or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]
EXEMPTION.--. . . . no person shall be held in violation of subsection (3) or subsection (7) if:
(e) 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 or her 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. [Section 112.313(12)(e), Florida Statutes.]
From the content of your inquiry, it is apparent that you realize that the member's situation would be conflicting under Sections 112.313(3) and 112.313(7)(a) were the City to advertise in his magazine, absent the applicability of the exemption contained in Section 112.313(12)(e), commonly referred to as the "sole source" exemption.[4]
While we previously have not had occasion to consider the sole source exemption in the context of advertising, we have recognized its applicability in situations in which it was represented to us that the provider was the only source of supply of an item in the political subdivision. See, for example, CEO 77-125 (school district director of curriculum owner of only retail outlet for athletic supplies), CEO 77-127 (only provider of 24-hour telephone answering service in the county), CEO 78-17 (hardware store only source of supply of particular item in fire district), CEO 79-83 (school principal/athletic supply company only sporting goods dealer in school district), CEO 89-65 (assistant city attorney's property sold to city had "historical value" of a "unique nature"), and CEO 90-24 (city commissioner/"only suitable property in the city"). However, under the facts of your inquiry, we do not find that publication A would constitute the only source of supply within the City. While it is represented to us that publication A is a monthly publication distributed free of charge to transient tourists via placement in hotel and motel rooms within the City, publication B also is a monthly publication distributed free of charge, and publication B states within its four corners that it is "distributed throughout Gulf Breeze . . . .," and that it "can be picked up at over 100 locations including: hotels, condominiums, restaurants, stores." In addition, the issue of publication B provided to us contains a half-page advertisement concerning the City's fishing pier, the very attraction the City is seeking to market.
Accordingly, under the circumstances set forth herein, we find that the sole source of supply exemption would not apply and thus that a prohibited conflict of interest would be created for the City Council member under Section 112.313(3) and Section 112.313(7)(a), Florida Statutes, were his magazine to sell fishing pier advertising to the City.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 5,1998 and RENDERED this 10th day of March, 1998.
___________________________________
Kathy Chinoy
Chair
[1] Travelhost (Pensacola, Florida edition), February 22, 1998.
[2] Your letter of inquiry asks the question considered herein in regard to the City Manager (Edwin A. Eddy), as well as in regard to the member (Mr. Outzen). Inasmuch as you have not indicated that the City Manager is privately connected to the magazine, issues under Sections 112.313(3) and 112.313(7)(a), Florida Statutes, are not present as to the Manager, and thus there is no need to consider him in relation to the sole source exemption contained in Section 112.313(12)(e), Florida Statutes. Suffice it to say that under the scenario put forth in your letter, we find that the City Manager has no prohibited conflict under Sections 112.313(3) and 112.313(7)(a), regardless of the applicability of the sole source exemption to the member.
[3] Gulf Breeze, Pensacola Beach & Navarre CURRENTS, March 1998.
[4] We find that the exemption contained in Section 112.313(12)(f), Florida Statutes, would not be applicable, inasmuch as you have represented to us that the transactions between the City and the magazine would exceed $500 per calendar year.