CEO 89-23 -- June 14, 1989

CONFLICT OF INTEREST

COUNTY PUBLIC HEALTH UNIT EMPLOYEE

WORKING AS ASBESTOS SURVEYOR

To: Laurel E. Hopper, District IX Legal Counsel, Department of Health and Rehabilitative Services (West Palm Beach)

SUMMARY:

An employee in the Air Pollution Control Section of the Engineering Division of a County Public Health Unit is prohibited by Section 112.313(7)(a), Florida Statutes, from doing business as an asbestos surveyor within the County when his agency is responsible for inspecting asbestos demolition and renovation. He is not prohibited, however, from conducting asbestos surveys outside the County in which his agency functions. CEO 86-62 and CEO 85-16 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were an employee of the Air Pollution Control Section of the Engineering Division of a County Public Health Unit to form a corporation in which he does business as an asbestos surveyor when the Air Pollution Control Section is responsible for inspections concerning asbestos removal?

Your question is answered in the affirmative if the corporation were to work in the County, but in the negative if the corporation limits its work to inspections outside the County.

In your letter of inquiry you advise that . . . is an employee of the Department of Health and Rehabilitative Services Palm Beach County Public Health Unit. He would like to form a corporation through which he would be self-employed as an asbestos surveyor during the hours he is not working for the Health Unit. He currently has interim certification as an asbestos surveyor pursuant to Section 455.302(4)(b), Florida Statutes. He has stated by telephone that he is not qualified for, nor does he intend to seek to obtain a license as, an asbestos consultant.

In a telephone conversation with our staff, the employee explained that the County Health Unit basically is comprised of two sections, the Environmental and Engineering Divisions. Within the Engineering Division is the Air Pollution Control Section, which is composed of approximately 12 employees.

The employee works in the Air Pollution Control Section as a Public Transportation Specialist I. His primary responsibilities include monitoring the impact of mobile sources of air pollution on air quality. He reviews environmental impact statements and developments of regional impact; coordinates mobile source public information programs; comments and assists in implementing Department of Environmental Regulation (DER) mobile source rules; investigates complaints of tampering and mis-fueling of automobiles; represents the Health Unit as a voting member of the Technical Advisory Committee of the Metropolitan Planning Organization; and performs a variety of other mobile source related duties. His position does not require involvement with asbestos related issues; nor does his position description include duties related to asbestos.

The Air Pollution Control Section of the Health Unit also has an Environmental Specialist II position with specifically assigned asbestos duties. The individual assigned to this position is responsible for maintaining all aspects of the asbestos program under the direction of the supervisor of the Air Program, including coordinating the program with DER and fulfilling all asbestos related EPA grant commitments; inspecting for asbestos renovation and demolition projects to ensure compliance with applicable federal, state, and local regulations; updating the State Asbestos Coordinator in Tallahassee on monthly inspection and enforcement cases; and representing the Air Program primarily on asbestos related matters in meetings and discussions with public and private organizations and individuals. Approximately 75% of this employee's time is dedicated to asbestos related issues.

A person who is certified pursuant to Section 455.302(4)(b) as an asbestos surveyor may provide the services described in Section 255.553(1), (2) and (3), Florida Statutes. These services are to determine all materials which contain asbestos, to identify the location and quantity of the types of asbestos-containing materials, and to assess the hazard of existing asbestos-containing materials as they relate to any situation where a person may come into contact with asbestos. The subject employee advises that he may recommend that asbestos be removed but otherwise cannot participate in the abatement process. As a certified asbestos surveyor, the subject employee would like to conduct asbestos surveys in both private and public buildings.

Section 112.313(7)(a), Florida Statutes, states:

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.

This statutory provision prohibits an agency employee from having contractual relationships with entities regulated by his agency. The Air Pollution Control Section of the Engineering Division of the County Public Health Unit inspects asbestos renovation and demolition projects to ensure compliance with federal, state, and local regulations. The employee states that he only intends to conduct surveys for the purpose of determining whether asbestos is present in a building but does not intend to participate in the removal of any asbestos. Nevertheless, we are of the opinion that participation even in the survey of a building for asbestos would constitute a contract with an entity which is subject to the regulation of his agency in violation of Section 112.313(7)(a). In essence, his private work would involve consulting with public and private entities about a subject which would be regulated by the same Section within which he works. See CEO 86-62.

In CEO 85-16 we determined that an environmental health specialist with the environmental health division of a county public health unit could be employed by a children's home which was inspected by the environmental health division when the employee's duties did not include inspecting children's homes or child care facilities. A determinative fact in that opinion was that the employee's only interest in the home was as a part-time employee, not as an owner or managerial employee. In addition, we noted the great number and diversity of activities inspected by the Environmental Health Division. We were not provided with any information in that opinion which indicated that the employee was working within the same section of the environmental health division which was responsible for inspecting the children's home.

In contrast to the facts described in CEO 85-16, the subject employee works in the Air Pollution Control Section of the Engineering Division, which is responsible for inspecting demolition and renovation of buildings containing asbestos. Although he may not have any asbestos-related duties, the employee who does have such duties is one of 12 employees who work in the Section. In addition, the subject employee proposes to form a corporation in which presumably he would have a large interest. He therefore would have a greater interest in the business than merely a part-time employee. Accordingly, we are of the opinion that the employee's situation is distinguishable from that addressed in CEO 85-16 and that his participation in such a business would violate Section 112.313(7)(a), Florida Statutes.

You also have asked whether the subject employee could survey buildings for asbestos outside the County without violating the Code of Ethics for Public Officers and Employees. As his agency has no regulatory powers outside the County, we have not been provided with information which would indicate that he would violate the Code of Ethics by inspecting buildings which are not located within the County. See CEO 86-62.

Accordingly, we find that Section 112.313(7)(a), Florida Statutes, prohibits the subject employee from participating in an corporation as an asbestos surveyor doing business in Palm Beach County. He is not prohibited from forming a business in which he is self-employed as an asbestos surveyor which only does business outside of Palm Beach County.