CEO 02-9 -- April 30, 2002
CONFLICT OF INTEREST
STATE FIRE MARSHAL EMPLOYEES ENGAGING IN OUTSIDE EMPLOYMENT
To: (Name withheld at person's request)
SUMMARY:
No prohibited conflict of interest would be created were a Fire Protection Specialist Supervisor of the State Fire Marshal's Bureau of Fire Prevention to engage in the practice of architecture as a self-employed architect, preparing design and construction documents for various types of residential and commercial buildings, unless the Bureau of Fire Prevention is called upon to resolve a dispute regarding the application of the fire codes to the client's project or unless the subject employee contracts directly with an architect, engineer, or contractor whose work he or the Bureau is reviewing or inspecting.
No prohibited conflict of interest would be created were a Fire Protection Specialist with the State Fire Marshal's Bureau of Fire Prevention to be secondarily employed to do home inspections and to assist contractors in preparing permitting packages for clients that would
No prohibited conflict of interest would be created were a Senior Management Analyst of the Bureau of Fire Prevention to engage in outside employment involving contracting to provide services to building owners, attorneys, contractors, architects, and engineers through corporate level contract training or project management not involving fire codes or standards, unless the Bureau is called upon to resolve a dispute regarding the application of the fire codes to the client's project or unless the subject employee contracts directly with an architect, engineer, or contractor whose work he or the Bureau is reviewing or inspecting. Without additional information, no opinion can be rendered about the employee's privately serving as an expert witness or providing architectural plan review, design assistance, requirement analysis, and specific code research.
QUESTION 1:
Would a prohibited conflict of interest be created were a Fire Protection Specialist Supervisor of the State Fire Marshal's Bureau of Fire Prevention to engage in the practice of architecture as a self-employed architect, preparing design and construction documents for various types of residential and commercial buildings?
In your letter of inquiry, you ask on behalf of the Division of State Fire Marshal whether a prohibited conflict of interest would exist were Fire Protection Specialist Supervisor James B. Fiveash, an employee of the Division of State Fire Marshal, Bureau of Fire Prevention, to practice architecture as a self-employed architect, preparing design and construction documents for various types of residential and commercial buildings. The work could include motels, office buildings, and residences for builders, developers, and private owners, but would not be done for any State agency.
In a previous opinion, CEO 98-1, we were asked whether a prohibited conflict of interest would be created were employees[1] with the State Fire Marshal=s Bureau of Fire Prevention to form a company which privately would provide fire and life safety training, seminars, consultations, and inspections both in-state and out-of-state for architects, engineers, electrical contractors, private businesses, organizations, and the federal government and would contract with counties, municipalities, county school boards, and private businesses to conduct life safety inspections of non State-owned or leased facilities. We concluded that no prohibited conflict of interest would be created as long as their company did not serve persons or entities whose work they currently were reviewing or inspecting in their public capacities.
CEO 98-1 was based on the legal authority of the Bureau of Fire Prevention and the responsibilities of the three employees who were the subject of that opinion. At that time, the Bureau was responsible for reviewing plans for and inspecting all State-owned and State-leased buildings for compliance with firesafety standards that were adopted by the Division. These are known as "uniform standards." The "uniform standards" also are applicable to a number of other types of non State-owned facilities, such as hospitals, nursing homes, schools, and child care facilities.[2] The Bureau did not review plans or handle inspections of these types of facilities, except under unusual circumstances, but the Bureau was the final administrative interpretive authority, so that if a local issue arose concerning the "uniform standards," a local inspector or building owner could ask for the Bureau's interpretation, either informally or formally under the APA. We were advised that the three subject employees were not responsible for providing the Division's interpretations of, did not teach classes on, and did not regularly provide technical assistance to local authorities about the "uniform standards."
Since CEO 98-1, the Division of State Fire Marshal has become responsible for adopting a statewide firesafety code, called the Florida Fire Prevention Code, which governs all buildings and structures in the State other than those governed by the "uniform standards."[3] The Fire Prevention Code standards are known as "minimum standards," and are enforced by each municipality, county, and special district with firesafety responsibilities, unless that jurisdiction has adopted more stringent requirements. Beginning January 1, 2002, the Division has become the final appellate authority, subject to judicial review, of all of the "minimum standards."
Also, you relate that currently as part of their duties Division personnel from time to time provide informal opinions to, and participate in issuing declaratory statements for, people who have requested interpretations of the "uniform" and "minimum" firesafety standards as they apply to State-owned and State-leased buildings, to the other non State-owned buildings that are subject to the "uniform standards," and, to some extent, to all other structures (as those structures are subject to the "minimum standards").
In addition to supervising Fire Protection Specialists and associated support staff and directing and advising them in the proper interpretation of the "uniform"
‚ Consulting with, and providing technical assistance to, architects, engineers, contractors, municipal and county building officials, fire officials, "private industry," and the general public relative to the interpretation and application of relevant Florida Statutes, administrative rules, and firesafety codes and standards;
‚ Responding to oral and written inquiries and complaints;
‚ Acting as an administrative interpreting authority of the State Fire Marshal's administrative rules and adopted firesafety code(s) and standards;
‚ Determining acceptable equivalent levels of safety based on experience, sound engineering principles, and accepted standards;
‚ Coordinating the correction of violations of applicable firesafety laws, rules and regulations;
‚ Developing training programs for local officials regarding applicable statutes and uniform laws;
‚ Assisting the Fire Protection Specialists in conducting the more complicated fire safety surveys, assessments and special construction inspections;
‚ Assisting the State Fire Marshal's Plans Review Section, when requested, in their review of engineering specifications related to "difficult" fire protection matters; and
‚ Assisting the State Attorney and other legal entities, as required.
The subject employee advises that, as a design architect, he is required to design buildings that comply with codes and standards adopted by the county in which the building is to be constructed, including both building code and fire safety code standards. Architects are required to submit their drawings to the building department of the local jurisdiction for review and permitting prior to construction, to confirm code compliance. If there is a code dispute, it would be resolved at the local level through a code review board or other local process. The local government would be the final authority over any code disputes, except for State owned buildings.
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.]
The first part of this provision prohibits the subject employee from having any employment or contractual relationship with business entities or agencies which are subject to the regulation of, or are doing business with[4], his "agency,"
Although the Fire Marshal's Office is responsible for adopting both the "minimum" and the "uniform" standards, it is not responsible for enforcing these standards through reviewing plans, issuing permits, or inspecting construction, except with respect to State-owned and State-leased buildings. Regarding the work which the subject employee proposes to do (which would involve only privately-owned, non-State projects), these regulatory activities are left to the local jurisdictions[5] and it is only at the point where a dispute would arise concerning the interpretation of the applicable standards that his agency would become involved. Therefore, in our view, the Bureau of Fire Prevention would not "regulate" the architect's clients unless, and until, the Bureau is called upon to resolve a dispute regarding the application of the codes to the client's project, at which time the subject employee would have to cease his contractual relationship with that client. Also, as we concluded in CEO 98-1, were the subject employee to contract directly with an architect, engineer, or contractor whose work he is reviewing or inspecting in his public capacity or whose work the Bureau is reviewing or inspecting, a violation of the first part of Section 112.313(7)(a) would exist. Under this scenario, he would have a contractual or employment relationship with a business entity subject to the regulation of his agency.
The second part of Section 112.313(7)(a) prohibits the subject employee from having employment or contractual relationships which create continuing or frequently recurring conflicts between his private interests and the performance of his public duties, or which impede the full and faithful discharge of his public duties. In making this determination, we examine Athe nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'" Zerweck v. State Commission on Ethics
Given the limited extent to which the subject employee's architectural work might involve the Bureau, we see no basis to conclude that his proposed work would create a continuing or frequently recurring conflict of interest, or impede the full and faithful discharge of his public duties. As noted above, at the point that the Bureau of Fire Prevention is called upon to resolve a dispute regarding the application of the "uniform" or "minimum" codes to the client's project, he would have to cease his contractual relationship with that client.
QUESTION 2:
Would a prohibited conflict of interest be created were a Fire Protection Specialist with the State Fire Marshal's Bureau of Fire Prevention to be secondarily employed to do home inspections and to assist contractors in preparing permitting packages for clients that would
You also ask whether a prohibited conflict of interest would exist were Fire Protection Specialist George R. Jones, an employee of the Division of State Fire Marshal, Bureau of Fire Prevention, to be privately employed to perform home inspections on real estate properties on a scheduled basis, and also to assist contractors in preparing permitting packages, for clients that would include Realtors, contractors, and purchasers. When asked to describe these activities and how they would involve the "uniform" and "minimum" standards, the Fire Protection Specialist replied that a home inspection is not a code compliance inspection; rather than being a statement of value or a pass/fail report, it is a statement of the physical condition of the property that informs the client of the presence of such things as decayed wood, evidence of prior roof leaks, the condition of the roofing, and like items. As a result, he stated, a home inspection would not involve either the "uniform" or the "minimum"
When asked what activities would be involved in his assisting contractors to prepare permitting packages and how that would involve the uniform and minimum standards, he replied that prior to permitting all planning and building departments require a detailed review to ensure that the planning and zoning is proper and to ensure the structure would be physically sound, the plumbing and air conditioning are correct, etc. Included in this review is a requirement that the local authority having jurisdiction (the local fire department) review for compliance with the appropriate fire codes.
The Fire Protection Specialist's position description reveals that his public duties involve the interpretation and enforcement of those statutes and rules within the State Fire Marshal's jurisdiction.
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Section 112.313(7)(a), Florida Statutes, is the relevant portion of the Code of Ethics for Public Officers and Employees. [6] As we concluded in response to your first question, the Bureau of Fire Prevention would not "regulate" the subject employee's private employer or clients unless, and until, the Bureau is called upon to resolve a dispute regarding the application of the codes to the client's project, at which time the subject employee would have to cease his employment or contractual relationship with that client.
However, given the fact that the home inspection process would not involve the fire codes, and the fact that the permitting process for contractors typically would not involve the Bureau, we see no continuing or frequently recurring conflict or impediment to the full and faithful discharge of public duties in the subject employee's proposed outside employment. Again, at the point that the Bureau of Fire Prevention is called upon to resolve a dispute regarding the application of the "uniform" or "minimum"
QUESTION 3:
Finally, you advise that Senior Management Analyst J. Robert Calpini, an employee of the Division of State Fire Marshal, Bureau of Fire Prevention, has asked whether he may engage in outside employment involving "contract consulting,"
According to the position description you have submitted, the Senior Fire Management Analyst also is assigned to the Bureau's Inspections Section.
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‚ Responding to inquiries regarding relevant statutes, rules, and firesafety or building codes from field personnel, city and county officials, "other authorities"
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Regarding his proposed outside employment, the subject employee advises that his proposed "corporate level training" would involve contracting to deliver a topic that is specified and prepared by an organization to be presented to the workforce at any level of the organization. Topics might include ethics, management, leadership, organizational structure, and core responsibilities, but would not include fire codes and standards, he advises. "Project management,"
Section 112.313(7)(a), Florida Statutes, is the most relevant provision of the Code of Ethics here. Because the employee's proposed "corporate level training" and "project management" activities would not involve the fire codes or standards that are administered by the Bureau, our only concern is with the nature of his client's or employer's relationship with the Bureau.[7]
Regarding his proposed work as an expert witness, the employee advises that this could involve fire codes and the "minimum" and "uniform" standards, and that he would expect to be qualified as an expert in the areas of origin and cause of fires, fire safety related topics, and, to some extent, construction topics. His proposed review of architectural plans, design assistance and requirement analysis is, essentially, code identification and also might very well involve uniform and minimum standards, depending on the specified occupancy, the employee advises. Typically, he states, any one or combination of the entities mentioned could seek these services depending on specific need.
We are unable to render an opinion regarding these proposed activities by the subject employee without additional information. We are concerned that any private employment that arises directly out of the employee's expertise or official responsibilities in fire-related matters and would be for the primary purpose of giving opinions about matters that are within the Fire Marshal's jurisdiction may present a conflict of interest, given his public responsibilities for the adoption and interpretation of firesafety codes and standards.[8] See, for example, CEO 91-1 (State Senator prohibited from being employed as consultant on legislative activities of association that lobbied the Legislature), and CEO 80-21 (employee of State Courts Administrator prohibited from consulting on dispute resolution alternatives to organizations whose requests for assistance were denied by the agency). Without knowing the parties to the litigation or controversy, the subject matter of the proposed testimony or plan analysis, the extent to which the Fire Marshal's office may have been involved or is likely to become involved, and similar factors, we cannot evaluate the potential for conflicts of interest in the proposed outside employment.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 25, 2002 and RENDERED
Ronald S. Spencer, Jr., Chairman
[1]
[2]Pursuant to Sec. 633.022(1)(b), F.S., these are: "All new, existing, and proposed hospitals, nursing homes, assisted living facilities, adult family-care homes, correctional facilities, public schools, transient public lodging establishments, public food service establishments, elevators, migrant labor camps, mobile home parks, lodging parks, recreational vehicle parks, recreational camps, residential and nonresidential child care facilities, facilities for the developmentally disabled, motion picture and television special effects productions, and self-service gasoline stations."
[3]Sec. 633.025, F.S., eff. July 1, 2001.
[4]In the absence of any facts indicating otherwise, we will assume that no client of the subject Fire Protection Specialist Supervisor will be "doing business with"
[5]Thus, in CEO 81-9 we advised that a town building official would be prohibited from doing business as a building contractor within the town. As we noted in CEO 76-42, "obviously, one involved in the building industry is subject to the regulation of the building department." See also CEO 79-41, CEO 86-62, and CEO 99-15 (fire control district regulates architects, engineers & contractors whose work it reviews &
[6]Again, we are assuming for the purposes of this opinion that none of the employee's private clients or employers would be "doing business with"
[7]As with questions 1 and 2, we are assuming for the purposes of this opinion that none of the employee's private clients or employers would be "doing business with"
[8]