CEO 85-23 -- April 4, 1985

CONFLICT OF INTEREST

CITY BUILDING INSPECTOR MAKING CONSTRUCTION DRAW INSPECTIONS FOR SAVINGS AND LOAN

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

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a city building inspector to accept outside employment as a construction draw inspector with a federal savings and loan operating within the city. Such employment would create a frequently recurring conflict of interest with an inspector's obligation to avoid using on-duty time, city vehicles, or other city resources to perform private work.

QUESTION:

Would a prohibited conflict of interest be created were a city building inspector to accept outside employment as a construction draw inspector with a federal savings and loan operating within the city?

Your question is answered in the affirmative.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that .... is employed as a Building Inspector by the City of Lakeland. In that position, he is responsible for inspecting construction plans and specifications for improvements made within the City and for inspecting the actual construction at various stages of completion in order to determine compliance with City building codes. The Building Inspector has the authority to issue building permits in the name of the building official upon approving construction drawings, plans and specifications, and he may initiate the process whereby a stop order is issued by the building official if construction does not conform to the approved plans or to the building code. The building code provides aggrieved persons with the right of appeal from determinations by the Building Inspector to the building official and ultimately to a City board.

You also have advised that a local federal savings and loan doing business within the City and the County has offered the subject Building Inspector a job as a construction draw inspector. That employment would require him to visit construction sites of projects financed by the savings and loan and to report to the institution the stage of completion. The savings and loan then would make a disbursement to the contractor based upon the inspector's information and on the stage of completion of the project. The employee would not be called upon to check public records or to give an opinion on compliance with building codes. The inspection would be purely visual, in order to determine whether the project improvements required to be completed for the next disbursement of construction funds are in fact present at the project site. The work would be done after normal working hours except that visual inspections for the savings and loan could be made in some instances at the same time the employee is inspecting a project for compliance with City codes in his capacity as Building Inspector. The employee would be compensated for his services on a per inspection basis.

Finally, you advise that the operations of the savings and loan are not regulated by the City, and the savings and loan would not be regulated by the Building Inspection Division unless it made an improvement to its own facilities located within the City. In that case, another Building Inspector would be assigned to the project. 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 a public employee from having any employment that will create a continuing or frequently recurring conflict of interest. The term "conflict of interest" is defined as "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." Section 112.312(6), Florida Statutes. As noted in Zerweck v. State Commission on Ethics, 409 So.2d 57, at p. 61 (Fla. 4th DCA 1982), Section 112.313(7)(a) requires a review of a public officer's or employee's duties and his private employment "to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'"

Clearly the use of on-duty time, City vehicles, or other City resources in traveling to construction sites in order to perform private inspections for the savings and loan would constitute the use of public resources for private benefit and a misuse of public position. We also note from the Building Inspector's job description that his work is performed with considerable latitude for independent action. Although your letter indicates that inspections for the savings and loan would be done after normal working hours, except where an inspection could be done during the course of his official inspection for the City, we are of the opinion that the Inspector would be placed on a frequently recurring basis in situations which "tempt dishonor" by tempting him to do otherwise. In other words, we believe that given the minimal level of personal supervision of an Inspector, an Inspector would be faced with substantial temptation to go out of his way while on duty to perform inspections for the savings and loan.

We do not mean to imply that the subject Building Inspector could not or would not withstand temptation in order to separate his public and private roles. However, the question we must answer is not whether a particular individual is capable of performing his public duties without regard for his private employment, but whether that employment is of such a nature as to frequently tempt him to disregard his public responsibilities.

Accordingly, we find that a prohibited conflict of interest would be created were the subject Building Inspector to be employed by the savings and loan to make construction draw inspections.