CEO 90-75 -- November 30, 1990
CONFLICT OF INTEREST
COUNTY LIBRARY PERSONNEL PERFORMING RESEARCH FOR PATRONS DURING OFF-DUTY HOURS
To: (Name withheld at the person's request.)
Section 112.313(7)(a), Florida Statutes, would not prohibit County Public Library System employees from performing extensive research for patrons for a fee on their own time during off-duty hours, when the County Public Library System, although capable of providing the same service, has chosen not to. CEO 87-71 is referenced.
Would a prohibited conflict of interest exist were county library personnel to perform research for patrons for a fee on their own time during off-duty hours, when the County Public Library System cannot or will not perform extensive research for patrons as a county service?
Your question is answered in the negative, subject to the condition noted below.
In your letter of inquiry, you indicate that you are the Director of a County Public Library System and that, as a library policy and as a practical matter, you must restrict the amount of research that is performed for library patrons. You indicate that many patrons expect you or your staff to compile bibliographies or undertake other extensive searches of materials that are not possible to do within your constraints. Many of your librarians have been approached by patrons who offer to pay for this additional research, which library personnel would perform on their own time during off-duty hours at county libraries and other facilities. You believe this practice constitutes a conflict of interest because patrons are being charged for a service similar to a free service provided by the county and because library personnel may have an unfair advantage in obtaining clients seeking research services due to their presence in the library.
Section 112.313(7)(a), Florida Statutes, of 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.
The first part of the statute would prohibit your employees from having any employment or contractual relationship with any business entity that is subject to the regulation of, or doing business with, the County Public Library System. Based upon the information in your letter of inquiry, it does not appear that this provision is applicable. Individual patrons utilizing the library's services would not be subject to the library's regulation nor would they be "business entities" as that term is defined in Section 112.312(3), Florida Statutes. It also does not appear that patrons utilizing the library are "doing business" with the library, as we have generally construed that term to involve an exchange of services or consideration with attendant legal obligations, and the use of the library by patrons would not fall within this category.
The second part of the statute would prohibit your employees from having employment that would create a continuing or frequently recurring conflict between their private interests and the performance of their public duties or that would impede the full and faithful discharge of their public duties. In CEO 87-71, we opined that this provision would prevent an employee with the Department of State, Division of Historical Resources, from entering into a contract for professional services with a business entity if the Bureau could also provide those same services under a similar contractual relationship. Quoting from CEO 79-47, we stated, "For a state employee to benefit privately from a situation in which his state could participate officially suggests the possibility of, or potentiality for, an employee's diverting agency-related business to himself for private gain."
However, in your letter of inquiry, you state that "in-depth research and/or compilation of research is not a county service and may be a needed one for many of our patrons." We therefore distinguish our decision in CEO 87-71, because in that opinion we also said that "if a job opportunity for the employee is one which the Bureau cannot or will not do, he would be allowed to accept it as long as he would have no part in the decision-making process of the Bureau for project acceptance or denial (which would give the appearance of misuse of position), did not use agency resources, and did not allow the private work to conflict with his public duties." Therefore, if these employees play any role in deter-mining whether library personnel will assist patrons with requests for research assistance, then a prohibited conflict would exist and they should not be allowed to perform outside research. However, if the employees play no role in this decision, then it does not appear that Section 112.313(7)(a), Florida Statutes, would proscribe the conduct at issue. Finally, if the County Public Library System decides to change its policy and allow library personnel to perform extensive research for patrons for a fee payable to the County Public Library System, then it would be a conflict of interest for employees to, in essence, compete with the County Public Library System by also performing research.
Accordingly, we find that no prohibited conflict of interest would be created were the library personnel employed by the County Public Library System to perform extensive research for patrons for a fee on their own time during off-duty hours as long as the County Public Library System either cannot or will not perform extensive research for library patrons as a county service, and the library personnel have no role in determining whether the County Public Library System will be able to assist the patrons with the research requests.