CEO 98-19 -- October 22, 1998

CONFLICT OF INTEREST

COUNTY HOUSING AUTHORITY TENANT BOARD MEMBER

RECEIVING SCHOLARSHIP ENDOWED BY HOUSING AUTHORITY

To: Nancy E. Yenser, Attorney for the Alachua County Housing Authority (Gainesville)

SUMMARY:

No prohibited conflict of interest would be created where a tenant board member of a county housing authority receives a scholarship endowed by the housing authority and administered by a community college foundation. While the board member may have a contractual relationship with the foundation which is doing business with the authority, the tenant board member was otherwise eligible for the scholarship, the program itself was widely publicized, her scholarship did not deprive other eligible recipients, and continuing oversight by the housing authority is not required.

QUESTION:

Would a prohibited conflict of interest be created where a tenant board member for a county housing authority applies for and receives a scholarship awarded to tenants by the housing authority?

Under the circumstances presented, your question is answered in the negative.

From the correspondence associated with your opinion request, we are advised that this opinion is sought on behalf of Yolanda Wilson, who serves as a tenant Member of the Alachua County Housing Authority's Board of Commissioners. You relate that the Alachua County Housing Authority Barbara Higgins Scholarship Fund was endowed by the authority in 1993 to provide scholarships for residents in the Authority's housing projects who attend Sante Fe Community College. The stated intent of the scholarship program was to provide low-income or other at-risk students and/or young adults an incentive to stay in or return to school and obtain education and training. Materials indicate that the Sante Fe Community College Endowment Corporation is the administrator for this scholarship and that the Authority Board recommends potential scholarship recipients each year.

You relate that, earlier this year, two Housing Authority residents applied for the scholarship, one of whom was the tenant Board member. Although she abstained from the vote to forward her application along with the other individual's to the Community College for processing, a question subsequently has been raised about whether receiving the scholarship itself creates a conflict of interest prohibited by the Code of Ethics for Public Officers and Employees.

The applicable standard of conduct is contained in Section 112.313(7)(a), Florida Statutes, which 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 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 (1997).]

Section 112.313(7)(a) prohibits a public officer from having a contractual relationship with a business entity which is doing business with her agency. It also prohibits a public officer from having a contractual relationship which creates a continuing or frequently recurring conflict between her private interests and the performance of her public duties, or which impedes the full and faithful discharge of public duties. It may be that, since the scholarship program is administered by the Sante Fe Community College Endowment Corporation, the tenant Board member would have a contractual relationship with a business entity (the Corporation) doing business with the Housing Authority. However, we do not decide this question because, for the reasons presented below, we conclude that there is no prohibited conflict of interest here.

In CEO 98-3, we opined that a prohibited conflict of interest would be created where a board member for a community redevelopment agency sought a low-cost loan through a program offered by his agency. That opinion concluded that the board member would have a contractual relationship with a business entity doing business with his agency, a relationship which is prohibited by the first part of Section 112.313(7)(a). Implicit in reaching that conclusion was information which indicated that the loans were awarded on a first-come, first-served basis and that the board member's application, if granted, would have depleted the available funds. CEO 98-3 also referenced CEO 77-65, which found a prohibited conflict where a Florida Bicentennial Commission member was employed by a university that sought a grant from the Commission; CEO 88-52, where a city employee applied for a rental rehabilitation loan administered by the city program which employed him; and CEO 90-76, where a county solid waste authority member applied for a grant from a program administered by the authority. Read together, all four opinions suggest that public officers should not be allowed to benefit privately because of their public positions.

Conversely, in CEO 84-95 we concluded that a junior college trustee would not violate Section 112.313(7)(a) by hiring a student to work at his law firm through the college's work/study program. There, we observed that participating in the program benefited the student more than the trustee and, because of a historical lack of participation by area businesses, the trustee was not Acompeting with other employers to participate in the program. Thus, Section 112.316, Florida Statutes, was applied to construct out the existence of a possible conflict. Section 112.316, Florida Statutes, provides:

CONSTRUCTION.-It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his or her duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, Florida Statutes (1997).]

In our view, the application of Section 112.316 to the circumstances at hand is appropriate. There is nothing to suggest that the Board member would receive a special benefit for which she was not eligible if she receives the scholarship, and there is no reason why she should be deemed ineligible for the scholarship just because she serves as a tenant Board member when she otherwise meets the criteria. Nor is there any suggestion that her award deprived others, since the information we reviewed indicates that the scholarship program is well-publicized but produced only two applicants in 1998. Finally, we do not believe that the tenant Board member's receipt of a scholarship administered by the Community College foundation would impede the discharge of her public duties. The program is administered by the foundation once the Housing Authority forwards to it the names of eligible recipients and, as long as the recipient maintains good academic standing, the scholarship continues without further involvement by the Board. Thus, we conclude that the tenant Board member's receipt of a scholarship endowed by the Housing Authority and administered by the Community College foundation would not create a prohibited conflict of interest.

We also observe that it was appropriate for the tenant Board member to abstain from voting on her scholarship application and to file the memorandum of voting conflict form. Section 112.3143(3), Florida Statutes, requires these measures when a local public officer is faced with voting on a matter that inures to her special private gain or loss. We would not view scholarship awards to Housing Authority Board members as the salary, expenses, or other compensation, as provided by law that Section 112.313(5), Florida Statutes, envisions.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 22, 1998 and RENDERED this 27th day of October, 1998.

__________________________

Charles A. Stampelos

Chairman