Section 112.313(7)(a), Florida Statutes, prohibits a public employee from having an employment relationship with an agency that is doing business with his agency. This provision would be violated were an employee of the Department of Environmental Protection's Bureau of Public Land Administration to contract with the City of Tallahassee on the Cascades Park project where the City seeks land or easements from the Bureau of Public Land Administration, the employee's "agency." The second clause of Section 112.313(7)(a) also would be violated were the employee to contract with the City or an engineering firm doing work for the City, as his lengthy history with the Cascades Park on behalf of DEP makes him a resource to DEP, which will continue to be involved in Cascades Park. Additionally, Section 112.313(8), Florida Statutes, would be violated were the employee to privately consult with either an engineering firm seeking to contract with the City or with the City itself, as the employee formerly represented the Department on a work group involving Cascades Park. The employee's intimate knowledge and familiarity with the project was developed as a result of his work for the Department, and using that information to now enrich himself is prohibited by Section 112.313(8), Florida Statutes.
Would a prohibited conflict of interest be created were you, an employee with the Bureau of Public Land Administration for the Department of Environmental Protection, to consult with either an engineering firm or the City of Tallahassee on the cleanup of Cascades Park, where you previously worked on matters involving the project on behalf of the Department?
Your question is answered in the affirmative.
In your letter seeking a formal opinion and through discussions with our staff, we are advised that you are employed in an SES position with the Department of Environmental Protection's (DEP) Bureau of Public Land Administration as an Operations and Management Consultant Manager. Your duties with the Department presently involve the issuance of leases, easements, and renewals for the use of State-owned submerged lands for the Submerged Lands Section within the Bureau, but previously, you were assigned responsibility for a project known as Cascades Park—State-owned land in downtown Tallahassee contaminated with hazardous wastes.
The first aspect of your work on Cascades Park involved serving as DEP's representative on a work team with representatives from other agencies involved in the project. In 1990, the U. S. Environmental Protection Agency (EPA) determined that DEP, the City of Tallahassee (City), and the Department of Management Services (DMS) were responsible for addressing the hazardous waste cleanup at Cascades Park, and the agencies executed a Consent Order with EPA to initiate corrective actions at the site. In 1998, an Administrative Order of Consent with EPA was executed which required the agencies to initiate an Engineering Evaluation/Cost Analysis (EE/CA) to detail the contamination problem at the site and provide a cost analysis on possible methods to address the contamination. In 1999, the City retained a consultant to conduct the EE/CA, and the final report with supporting documents was submitted to EPA in February/March 2002.
The second aspect of your responsibilities regarding Cascades Park involved a settlement agreement that apportioned the costs associated with the investigation and cleanup of the site between DEP, DMS, and the City. While continuing to serve as DEP's contact person for the project, you advised upper-level decision makers at DEP concerning the settlement agreement which was eventually executed in March/April 2004. The agreement stipulated that DEP would recommend that the Board of Trustees for the Internal Improvement Trust Fund (BOT) would re-convey ownership of the property to the City, that the City would assume responsibility for the cleanup, and that the City would enter into a new Administrative Order of Consent with EPA. The parties also agreed to contribute to certain costs incurred by the City and to recommend that other property be re-conveyed to the City, as well as a flowage easement across the property. Finally, the parties agreed that they would cooperate with the City to secure funding for the project's remediation and redevelopment and encouraged the City to make application for grant funding administered by DEP and DMS. On April 29, 2004, the BOT approved the conveyance of the property to the City. You advise that although the deeds conveying the property have been drafted, they have not actually been accepted by the City because of concerns the City has about language in the deeds concerning reverter clauses and historic covenants. However, you expect the wording of the deeds to be resolved in the very near future.
With your official involvement in the Cascades Park project now ended, you are interested in pursuing a part-time employment or contractual relationship with either the City or an engineering firm that will be chosen to contract with the City to accomplish the cleanup at Cascades Park. You have indicated that you are not an engineer and do not have any expertise in chemistry or hazardous waste remediation. However, because of your lengthy (6+ years) involvement in the project as a DEP employee, you have gained significant knowledge about the project and its history. If you were permitted to consult with an engineering firm, you propose to assist it with the development and presentation of its proposal to the City and, if the firm is ultimately selected to undertake the work, provide occasional services to it such as facilitating public workshops. If instead you work with the City, you propose to assist it with its selection of an engineering firm contractor and, if requested, facilitate public workshops that will be held pursuant to regulatory requirements. In either case, you represent that any work you perform would be conducted outside of your regular DEP working hours or through the use of annual leave, that no State equipment or supplies will be used by you, and that the work would not interfere with your current DEP duties.
There are several provisions in the Code of Ethics implicated by your proposal. Section 112.313(7)(a), Florida Statutes, provides:
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.
In CEO 95-3, we reiterated our long-held view that that the "agency" of a State employee is the lowest level in the department in which the employee functions. Thus, we concluded in CEO 95-3 that the Department of Environmental Protection's Bureau of Marine Patrol was the "agency" of a DEP Marine Patrol Officer, and under the same rationale we conclude that your "agency" is the Bureau of Public Land Administration in the Division of State Lands. Therefore, you are prohibited from having an employment or contractual relationship with an engineering firm or the City if either is doing business with or regulated by the Bureau of Public Land Administration, or if your proposed work creates a continuing or frequently recurring conflict with your public duties or impedes the full and faithful discharge of your public duties.
You have represented that you would not contract with any engineering firms that contract with the Division of State Lands to perform environmental assessments on property the State may acquire. Typically, it is the purchaser who hires an engineering firm to perform an environmental assessment on property the purchaser is buying rather than the seller of the property. Therefore, by avoiding those engineering firms retained by the Division, you would not run afoul of the first part of Section 112.313(7)(a).
Section 112.313(7)(a) also prohibits you from having a contractual relationship with the City if it is doing business with the Bureau of Public Land Administration. Although you have represented that you now work in the Submerged Lands Section of the Bureau, we do not limit your "agency" to only the Submerged Lands Section. Instead, your "agency" is the entire Bureau. Therefore, if the State and the City were to negotiate for a land swap or an easement while you are under contract with the City, you would have a contractual relationship with an agency that is doing business with your agency in violation of Section 112.313(7)(a). We further note that the Cascades Park settlement agreement contemplates the conveyance of additional property and flowage easements to the City. Because of this, we are concerned that granting deeds to the City has not totally ended the Bureau of Public Land Administration's involvement in Cascades Park. Therefore, we cannot definitively conclude that the first part of Section 112.313(7)(a) would not be violated by your proposed arrangement.
We also are concerned that because of your lengthy history as DEP's chief representative on Cascades Park, you will continue to be consulted by other DEP employees about the project, whether or not the Bureau's "official" involvement has concluded. The settlement agreement makes it clear that DEP will continue to be involved in Cascades Park. For this reason, we are concerned that your value as a resource to DEP would be compromised if you were to now contract with the City or an engineering firm doing work for the City at Cascades Park. The second part of Section 112.313(7)(a) prohibits you from having a contractual relationship which impedes the full and faithful discharge of your public duties. Therefore, we cannot definitively conclude that the second part of Section 112.313(7)(a) would not be violated by your proposed secondary employment.
Our analysis must necessarily include Section 112.313(8), Florida Statutes, which provides:
DISCLOSURE OR USE OF CERTAIN INFORMATION.—No public officer, employee of an agency, or local government attorney shall disclose or use information not available to members of the general public and gained by reason of his or her official position for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity.
This provision was intended to prohibit a public employee from taking unfair advantage of his position in order to benefit himself or others through the use of information he gained through his public position.
In a number of opinions, we have concluded that Section 112.313(8) prohibits a public employee from consulting in particular matters in which he developed an expertise while publicly employed. See CEO 79-47, CEO 80-21, CEO 81-54, and CEO 90-16. Here, your knowledge of Cascades Park and its regulatory history, as well as the relationships you developed while serving as DEP's representative on the interagency work group, all arose while you served as the Department's key staff person for Cascades Park. The American Heritage Dictionary, Second College Edition, defines "information" as "knowledge derived from study, experience, or instruction." In CEO 80-21, we concluded that the consulting work that an employee of the Office of State Courts Administrator was proposing to undertake involved not only his expertise, or skill, but also information he gained from his research and preparation in the area and that this information was going to be used for his personal gain or benefit as a private consultant in violation of Section 112.313(8). We believe that CEO 80-21 is analogous to your situation. We recognize that it would greatly benefit an engineering firm to be able to claim your association with it in making its proposal to the City, and we do not believe that a public employee should be permitted to benefit privately on a matter he worked on in his public capacity, especially while he remains a public employee. Nor do we believe that the competitive advantage an engineering firm could obtain by having you associated with it while you remain a DEP employee is appropriate under the Code of Ethics, as it creates a market for a public employee to trade on knowledge or information he developed on behalf of his agency. Therefore, we conclude that Section 112.313(8), Florida Statutes, would be violated were you to consult with an engineering firm either before or after it is selected to contract with the City to clean up Cascades Park while you remain employed by DEP.
We would have similar concerns were you to contract with the City. Your knowledge of the Cascades Park project and the relationships you developed with the other members of the work group all arose from your position as a representative of DEP. The settlement agreement makes it clear that the City and DEP have not always had compatible interests with regards to Cascades Park. To receive remuneration for trading on your knowledge of the project while still employed by the Bureau of Public Land Administration is contrary to the Code of Ethics.
Therefore, we conclude that Section 112.313(8), Florida Statutes, would be violated were you to contract with an engineering firm or the City on the clean up of Cascades Park while remaining employed by DEP. However, we would not view it as an ethics issue if the City sought assistance from DEP and your agency determined that the public would benefit by allowing you to assist the City in fulfilling its obligations to clean up Cascades Park. See CEO 79-47, CEO 87-71, and CEO 90-75.
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on September 2, 2004 and RENDERED this 7th day of September, 2004.
John A. Grant, Jr., Vice Chair