CEO 85-6 -- January 24, 1985

CONFLICT OF INTEREST

CITY WATER DISTRIBUTION SECTION EMPLOYEE PRIVATELY TESTING BACKFLOW PREVENTERS REQUIRED BY CITY ORDINANCE

To: (Name withheld at the person's request.)

SUMMARY:

No prohibited conflict of interest would be created were a first class pipefitter with the water distribution section of a city public works department to engage in the business of testing backflow preventers which are required by city ordinance to be tested annually. As neither the employee nor the water distribution section is involved in backflow prevention matters, and as Section 112.313(12)(c), Florida Statutes, exempts conflicts of interests based on the purchase or sale of any utilities service, the employee would not be prohibited from testing backflow preventers.

QUESTION:

Would a prohibited conflict of interest be created were you, a first class pipefitter with the water distribution section of a city public works department, to engage in the business of testing backflow preventers which are required by city ordinance to be tested annually?

Your question is answered in the negative.

Through your letter of inquiry and a telephone conversation between our staff and the Deputy Director of the Water Services Division of the City of Jacksonville, we have been advised that you are employed as a First Class Pipefitter with the Water Distribution Section of the Water Services Division, City of Jacksonville, Department of Public Works. In that position you are involved in maintaining water meters and checking on their accuracy.

In addition, we have been advised that you have obtained through schooling at your expense a license as a certified technician to test backflow preventers and that you would like to open a private testing facility as a part-time business. A City ordinance requires certain facilities to install backflow preventers (check valves placed in water lines near water meters) to prevent water from flowing back into the distribution system where there is the danger of contaminating the water supply. The ordinance requires backflow preventers to be tested annually. The results of these tests are provided to the Water Production Section of the Water Services Division, which is responsible for quality control and backflow prevention. If a backflow preventer is not tested annually or if the test results are not satisfactory, the Water Production Section works to remedy the situation, with the ultimate sanction for noncompliance being to shut off the water supply to the facility. According to the Deputy Director, neither you nor the Water Distribution Section plays any role in this process.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), Florida Statutes (1983).]

This provision prohibits you from having any employment or contractual relationship with a business entity which is subject to the regulation of your agency. However, we find that your "agency" as defined in Section 112.312(2), Florida Statutes, is the Water Distribution Section, which plays no role in regulating backflow prevention.

Section 112.313(7)(a) also prohibits you from having any employment or contractual relationship with a business entity which is doing business with your agency. Nevertheless, Section 112.313(12)(c), Florida Statutes, exempts conflicts of interest based on the purchase or sale of "any utilities service." Therefore, we are of the opinion that you would not be prohibited from testing backflow preventers for businesses which receive water from the City. Finally, we do not find that the business you propose to engage in would present you with a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of your public duties. In particular, we note that you are not involved as a public employee in backflow prevention matters, and neither is the Water Distribution Section, within which you work.

Accordingly, we find that no prohibited conflict of interest would be created were you to engage in the business of testing backflow preventers while being employed by the City as a First Class Pipefitter with the Water Distribution Section of the Public Works Department.