CEO 85-34 -- May 9, 1985

CONFLICT OF INTEREST

WATER MANAGEMENT DISTRICT EMPLOYEE EMPLOYED BY CONSULTING FIRM IN CONNECTION WITH APPLICATIONS FOR PERMITS FROM D.E.R.

To: Ms. Irene Kennedy Quincey, Attorney for South Florida Water Management District

SUMMARY:

No prohibited conflict of interest would be created were an employee of the South Florida Water Management District, Resource Planning Department, to be employed by a consulting firm in connection with applications for permits for underground injection from the Department of Environmental Regulation, where the District's Resource Control Department participates in a technical advisory committee to D.E.R. regarding the issuance of such permits. Although it is possible that the employee might review his private work at the request of the Resource Control Department, it cannot be concluded that his employment would impede the full and faithful discharge of his public duties, in violation of Section 112.313(7), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created were an employee of the South Florida Water Management District, Resource Planning Department, to be employed by a consulting firm in connection with applications for permits for underground injection from the Department of Environmental Regulation, where the District's Resource Control Department participates in a technical advisory committee to D.E.R. regarding the issuance of such permits?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry you advise that Mr. Michael S. Knapp is employed as a Hydrogeologist III within the Resource Planning Department of the South Florida Water Management District. His job responsibilities include applied hydrogeologic research on the shallow aquifers in the lower west coast region of Florida and involve the assessment of aquifers' lateral and vertical boundaries, hydraulic properties, water quality and potential for development.

You also advise that both the District and Department of Environmental Regulation (D.E.R.) have jurisdiction over part of the construction process for wells which are used to inject wastewater and other substances below the ground. In order to coordinate this permitting process, D.E.R. has formed a technical advisory committee consisting of members from several regulatory agencies, including the District's representative on the committee who is a Hydrologist from the Resource Control Department. The subject employee's responsibilities within the Resource Planning Department do not require him to review or influence the decision of the Committee.

In order for an applicant to receive permission to inject substances such as wastewater into the ground, the applicant must obtain a permit from D.E.R. and the District. After review by the advisory committee, an application is submitted to the District for conceptual approval of a test hole. Upon completion of tests, the applicant then requests an operational permit from D.E.R. after conceptual approval by the District. In order to obtain a D.E.R. operational permit, the applicant must supply sophisticated scientific information, including a description of the composition of the underlying geologic strata.

A private consulting firm has offered to hire the subject employee to examine rock and sediment samples and to determine the rock and fossil content of the samples. After this examination, the employee would prepare a geologic log and formal statement on the stratigraphic sequence penetrated into the well, and would render his expert opinion as to whether the area of the well would be capable of receiving the particular type of effluent involved. The data supplied by the employee would become part of the packet of information submitted to the advisory committee and D.E.R., which would review the data in order to determine whether to permit the underground injection well.

The information submitted would be reviewed by the Resource Control Department of the District as part of the advisory committee. In difficult cases, that Department conceivably could request assistance from the Resource Planning Department, however. The subject employee's supervisor has advised that the employee is the best qualified individual in that Department to perform this work.

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).]

In our view, the consulting firm which would employ the subject employee is not subject to the regulation of the District. Therefore, our question is whether the proposed employment would create a continuing or frequently recurring conflict of interest, or would impede the full and faithful discharge of the employee's public duties.

In this respect, our primary concerns are that the employee not be in a position to review the work of his private employer, that he not be placed in a position to review his own private work; and, that the employee not be placed in a position as a result of his private employment to testify against his own agency. Given your description of the employee's duties, it does not appear that he is in a position to review applications submitted to the District by the consulting firm which would employ him. For a similar example, see CEO 83-19. In addition, as the employee's private work would relate to permits which would be issued by D.E.R., rather than the District, it does not appear that he would be placed in a position to testify as an expert against the District.

With respect to the possibility that the employee might review for the Resource Planning Department information which he had prepared in a private capacity, we find CEO 82-18 analogous. In that opinion, a D.N.R. employee was asked to provide consulting services to a county with respect to a project which was under the jurisdiction of D.E.R. There, it was possible that D.N.R. might have been asked to review the project, and, in that event, the employee likely would have been requested to provide the review. We found that it could not be concluded that the employee's private work would impede the full and faithful discharge of his duties without knowing that D.N.R. would be asked to review the project. Similarly, as Section 112.313(7)(a) only prohibits such employment as would impede the full and faithful discharge of public duties, we conclude that the subject employee's proposed work would not be violative of Section 112.313(7)(a) unless the Resource Planning Department, and the employee in particular, reviews the information submitted by the consulting firm.

You also have advised that the geologic log which would be prepared by the employee could become part of the District's data base examined by the District in reviewing applications for water wells and consumptive water use permits. You have questioned whether the employee's proposed work would create a prohibited conflict of interest if the District were to issue a water use permit requiring data from files which were submitted by the consulting firm or which were prepared for the firm by the employee. In our view, the fact that the District may use scientific data of this type would not give rise to a prohibited conflict of interest on the part of the employee.

You also have indicated that the District intends to revise its rules to require the issuance of underground injection permits, rather than simply giving conceptual approval of a project to D.E.R. We prefer not to address questions arising out of this proposed change at this time, without knowing the final form of the District's regulatory process and the extent of the employee's involvement. As noted above, our primary concerns would be whether the employee is in a position to review his private employer's work, to review his own work, or to testify against his agency as a result of his private employment. You may wish to consider whether restrictions similar to those imposed by D.E.R. in CEO 84-41 with respect to one of its employees might permit outside employment while avoiding conflicts of interest and preserving the interests of the District.

Accordingly, we find that under the circumstances presented no prohibited conflict of interest would be created were the subject employee to be employed by a consulting firm in connection with applications for underground injection permits from D.E.R.