CEO 90-14 -- March 8, 1990







To:      The Honorable Mary W. Morgan, Collier County Supervisor of Elections (Naples)




Section 112.313(8), Florida Statutes, prohibits a Supervisor of Elections from allowing a former county employee to use county-owned software programs for his personal benefit, when use of the software is unavailable to the general public.  CEO 89-26 is referenced.




Would a prohibited conflict of interest be created were you, a Supervisor of Elections, to assign to a former county employee the rights to use a county-owned computer software program which is unavailable to the general public, when the county employee intends to use the program for his personal benefit?


Your question is answered in the affirmative.


In your letter of inquiry, you advise that you are the Supervisor of Elections in Collier County.  You further advise that the County owns several computer programs which are derivatives of a program to which a former employee claims ownership.  This employee has resigned from his position with the County, and now is requesting that you, as Supervisor of Elections, turn over to him the program which you represent the County owns.  You wish to know whether you will violate any provision of the Code of Ethics if you do so.

In regard to your question, Section 112.313(8), Florida Statutes, provides:


DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity.


This provision prohibits you from disclosing information which is unavailable to the general public and gained through use of your official position in order to benefit yourself or someone else.  If the computer program is owned by the County and is not available for use by the general public, you would be prohibited by Section 112.313(8) from giving it to an individual who intends to use it for personal gain.  See CEO 89-26.

The penalties for violations of the Code of Ethics are contained in Section 112.317, Florida Statutes.  In cases where we determine that an elected county official has violated the Code, we may recommend any of the penalties set forth in that statute to the Governor.  The Governor would have the discretion to decide whether to impose any penalty and, if so, what penalty should be applied.

You also have asked several questions regarding the application of the Code of Ethics to the former County employee.  Pursuant to Section 112.322(3), Florida Statutes, only this employee or a person who has the authority to hire or fire him can request an opinion regarding his conduct.  As we have been informed that you lacked the authority to hire or fire him and that he was not an employee of the Supervisor of Elections, we cannot address those questions here.

Accordingly, we find that Section 112.313(8), Florida Statutes, would be violated were you to provide a County-owned computer program to a private individual who intends to use the program for his personal gain.