CONFLICT OF INTEREST

CITY FIRE DEPARTMENT PERSONNEL INDIVIDUALLY
TAKING COURSES FROM FIRE LIEUTENANT'S COMPANY

To: William VanHelden, Fire Chief (City of Cape Coral)

SUMMARY:

A prohibited conflict of interest does not exist under Section 112.313(7)(a), Florida Statutes, where a city fire lieutenant is part owner of a company that provides training classes to individual city personnel, provided that persons subject to his public capacity evaluation and recommendation are not students of the company. CEO 04-17 is referenced.

QUESTION:

Does a prohibited conflict of interest exist where a city fire lieutenant is part owner of a company that provides training classes to individual city personnel?

Your question is answered as set forth below.

By your letter of inquiry, we are advised that you serve as Fire Chief for the City of Cape Coral and that you ask whether a subordinate of yours, Fire Lieutenant Robert Blasetti (Lieutenant),¹ has a prohibited conflict of interest under the Code of Ethics for Public Officers and Employees, under the following circumstances.² Continuing, you advise that the Lieutenant is part owner of a company that provides training to fire service and health care personnel, that City Fire Department personnel are eligible to take the type of training classes offered by the company, and that pursuant to applicable collective bargaining agreements, City Fire Department personnel are entitled to reimbursement from the City for their costs of courses taken through providers such as the company. In addition, you advise that the City does not have and, to your knowledge, has never had a direct business relationship with the company. Further, you advise that the courses offered by the company are voluntary, that some courses can be taken by Fire Department personnel who are seeking certifications in order to become qualified for promotion, and that taking other courses may entitle personnel to additional pay pursuant to the fire union contract.

Additionally, you advise that the Lieutenant, in his public capacity, does not have authority to approve any training classes for members of the Fire Department. Further, we note that the Lieutenant's job description, supplied by you to our staff, provides, inter alia, as follows:

Evaluates personnel for efficiency and effectiveness. Recommends personnel action of hiring, promotion, discipline or termination. Provides technical support and guidance in their work activities.

Section 112.313(7)(a), Florida Statutes, is the prohibition within the Code of Ethics most applicable to your inquiry. It 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.

The second part of the statute³ is in need of treatment under your inquiry.

We find that under the second part of Section 112.313(7)(a), a prohibited conflict of interest exists for the Lieutenant if his company provides courses to Fire Department personnel regarding whom he has evaluation or recommendation responsibility. In such a situation, there exists a continuing or frequently recurring conflict between his private interests (interests of his company in competing for and handling students) and the performance of his public duties (the duty to objectively evaluate, recommend, and supervise persons without regard to whether they are taking classes from his company) or there exists an impediment to the full and faithful discharge of his public duties occasioned by the same public-private tension. However, we do not find that a prohibited conflict exists if his company's students are not persons subject to his public capacity evaluation and recommendation. In such a situation, the "temptation to dishonor"⁴ would not be present. In accord with our finding herein, see CEO 04-17, in which we found that no prohibited conflict of interest would be created were a public school teacher to engage in tutoring for pay public school students, or to be employed by a company providing such tutoring services, provided the teacher did not tutor his or her own students.

And we do not find that the situation implicates Section 112.313(3), Florida Statutes. Regarding its first part, assuming arguendo that the situation presented involves the City's (a political subdivision's) purchase of services from the Lieutenant's company, the situation does not indicate that the Lieutenant himself acted as a "purchasing agent" [defined at Section 112.312(20), Florida Statutes] to make any purchases from the company in behalf of the City. Rather, it appears that the City's governing board (itself never in a direct relationship or privity with the Lieutenant's company) entered into a collective bargaining agreement, some years before the Lieutenant was promoted to his current public position, which resulted in an obligation of the City to reimburse course-takers. Similarly, under the second part of Section 112.313(3), assuming arguendo that the Lieutenant will be acting in a private capacity to sell the company's services to the City or an agency of the City, the situation presented indicates that persons other than the Lieutenant, City officials and personnel who negotiated and entered into the collective bargaining agreement, had the public agency responsibility for creating the "relationship" between the City and the company, such that Section 112.316, Florida Statutes, would apply to negate any conflict for the Lieutenant. Sections 112.313(3) and 112.316 provide, respectively:

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 or 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.]

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.

ORDERED by the State of Florida Commission on Ethics meeting in public session on January 23, 2009 and RENDERED this 28th day of January, 2009.

____________________________________

Cheryl Forchilli, Chair

^[1] Your authority under the City's personnel rules and regulations, as represented in your inquiry, to hire, discipline, and terminate all employees in the Fire Department, establishes your standing, under Section 112.322(3)(a), Florida Statutes, to make inquiry regarding the Lieutenant.