BEFORE THE

STATE OF FLORIDA

COMMISSION ON ETHICS

 

CEO 98-1 -- January 22,  1998

 

CONFLICT OF INTEREST

 

STATE FIRE MARSHAL EMPLOYEES' COMPANY PROVIDING

FIRE AND LIFE SAFETY TRAINING, SEMINARS,

CONSULTATIONS AND INSPECTIONS

 

To:       J. Craig Myrick, Senior Attorney, Division of State Fire Marshal (Tallahassee)

 

SUMMARY:

 

Under the circumstances presented, no prohibited conflict of interest under the second part of Section 112.313(7)(a), Florida Statutes, would be created were a Fire Protection Specialist employed by the State Fire Marshal's Bureau of Fire Prevention to become secondarily employed by a company created to provide training, consultations, and seminars both in-state and out-of-state for architects, engineers, electrical contractors, the federal government, and private businesses, and to contract with counties, municipalities, county school boards, and private businesses to conduct life safety inspections of non State-owned or leased facilities, as long as he is not currently inspecting the work or property of those persons or entities which his company is serving.  The Fire Protection Specialist's proposed activities would not overlap with his public responsibilities to inspect State-owned and State-leased properties for compliance with the Uniform Fire Code and the Bureau's responsibilities to be the final administrative interpretative authority on the Uniform Fire Safety Standards, to review plans of State-owned and State-leased properties and to inspect the same for compliance with the Uniform Firesafety Standards, and to regulate and license fire equipment dealers, fire protection contractors, and explosives handlers.   Similarly, no prohibited conflict of interest would be created by the proposed secondary employment of the two engineers whose sole responsibility is to review plans of State-owned and State-leased properties.  No continuing or frequently recurring conflict between their private interests and the performance of their public duties or an impediment to the proper performance of their public duties would be created as long as they are not currently reviewing the plans of any of the persons or entities served by their company, because no overlap of the engineers' proposed activities with their or their Bureau's responsibilities exists.

 

QUESTION:

 

Would a prohibited conflict of interest be created were employees with the State Fire Marshal's Bureau of Fire Prevention to form a company to privately provide fire and life safety training, seminars, consultations, and inspections both in-state and out-of-state for architects and engineers and their firms, electrical contractors, private businesses, organizations, and the federal government?

 

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

 

In your letter of inquiry you ask whether a prohibited conflict of interest under the Code of

Ethics for Public Officers and Employees would be created were Florida Department of Insurance, Division of State Fire Marshal ("Division"), employees Robert Weatherbee, Walter Spann, and Roger Tompkins to work part-time providing seminars, consultations, and inspections of non State-owned and State-leased facilities for private architects and owners.  By your letter, attached written position descriptions, and your and the employees' discussion with our staff, we are advised that Mr. Weatherbee is employed as a Fire Prevention Specialist in the Division's Bureau of Fire Prevention[1], and Messrs. Spann and Tompkins are employed as Engineer II's also in the Bureau of Fire Prevention.  You advise that their primary responsibilities, as set forth in their written position descriptions and as you and Messrs. Weatherbee, Spann, and Tompkins discussed with our staff, consist of review and approval of building plans for State-owned and State-leased buildings, as those plans pertain to firesafety, and on-site inspections of those facilities.

The Fire Protection Specialist's written position description indicates that his work involves the interpretation and enforcement of statutes and rules under the jurisdiction of the State Fire Marshal, which you and the subject employees emphasize pertain only to State-owned or State-leased properties.  Specifically included among his responsibilities, as set forth in his written position description, are the following:

 

C                     Planning, organizing, and administering all activities related to the inspection of state-owned/leased facilities, as assigned; performing fire safety inspections; inspecting and approving new construction and renovations of State properties prior to their occupancy to assure the adequacy of construction and maintenance of means of egress; verifying that construction materials and methods will meet safety performance standards; and when violations are found, issuing notices to comply and assuring that corrective action is taken.

 

C                     Carrying out the Bureau of Fire Prevention's loss control program for purposes of eliminating or mitigating the physical conditions, operating practices, and other factors which may result in injury to persons or damage to property or cause loss of life; conducting investigations into the causes and circumstances of fires in order to determine the adequacy of codes and standards and the effect compliance or noncompliance had on the propagation of fire and smoke; and collecting and preserving evidence and acting as an expert witness for the State in criminal and civil litigation and administrative hearings.

 

C                     Conducting research of code requirements and preparing comprehensive written reports on all inspections and/or investigations undertaken; acting as an interpreting authority for uniform standards and determining compliance or noncompliance with these standards; and enforcing all laws relating to the prevention of fires and other conditions liable to cause injury or damage, which are under the jurisdiction of the State Fire Marshal.

 

C                     Assisting in the development and implementation of training programs and seminars for local and state agencies, as well as for private industry, including teaching classes and giving technical lectures in the field of fire codes, fire protection, and other subjects pertaining to the preservation of life and property from fire and similar emergencies.

 

Notwithstanding the above-listed responsibilities, we are informed that the Fire Protection Specialist is assigned from the Ft. Myers area to conduct inspections of State-owned and State-leased buildings in the area.  He advises that although he provided some training to local inspectors and contractors regarding alarms when he was a supervisor with the Bureau, as a Fire Protection Specialist, he does not teach any classes.  Technical assistance is provided only if the local fire prevention authorities or arson specialists seek the Bureau's expertise, he advises.  The Fire Protection Specialist recalls only one instance when he was requested to provide technical assistance, and that was in 1986.  He also advises that he has never served as an expert witness in his public capacity. More importantly, he claims that he is not responsible for interpreting the Uniform Firesafety Standards. 

Specifically included among the duties and responsibilities of an Engineer II as set forth in their written position descriptions are the following:

 

C                     Assisting project engineers and architects with the design of fire suppression and protection systems and establishing working plans for new and existing construction of State-owned and State-leased buildings, including for renovations, alterations or changes of occupancy; verifying the validity of automatic sprinkler design or high-rise  combination standpipe and sprinkler systems, including calculating minimum end head flow, or flow  based on available water supply; designing the layout of grid systems, tree systems or sprinkler and standpipe systems; coordinating and overseeing the review of engineering plans for special hazardous material protection systems, HVAC installations, above and underground tank design (whether shop built or field erected), automatic fire detection system designs, calculations of fire resistance for structures using wood, concrete, iron and steel, and electrical installations for compliance with the National Electrical Code; reviewing specific designs for hood and duct systems for removal of smoke and grease-laden vapors from commercial cooking equipment, including the design of automatic extinguishing equipment; conducting and directing on-site inspections for fire protection systems; conducting performance tests on all components of electronic fire warning and smoke detection systems; conducting pressurized air pre-occupancy inspections; and providing     technical consultations on State codes and administrative rules.

 

C                     Determining that plans and specifications for fire protection are adhered to by contractors during various phases of construction projects for State-owned and State-leased buildings.  Examining fire resistive floor/ceiling assemblies, column protections, walls and partitions and roof/ceiling assemblies to assure that the construction complies with the appropriate fire resistive lab director design, as referenced by a recognized testing laboratory; and examining the egress design of a structure prior to construction and verifying the validity of the design during construction.

 

C                     Maintaining liaison with all key personnel who are involved with fire protection activities in order to keep abreast of the latest concerns, techniques, and developments.

 

C                     Assisting the Bureau Chief in developing or upgrading staff development and training programs to enhance professional development for Fire Protection Specialists throughout the Bureau, including conducting research on the latest fire protection practices, compiling data on fire protection systems and components, teaching classes or giving technical lectures on such subject matters as plan reviews, inspections of construction, fire alarm and detection systems, fire suppression system installation, testing during phases of constructions, and examination of plans and supporting data for hydraulically designed automatic sprinkler or standpipe systems, etc.

 

Similarly, notwithstanding the above-listed responsibilities, we are informed that the engineers' responsibilities involve solely plan reviews of State-owned and State-leased properties to determine their compliance with firesafety standards.

You advise that the Bureau's interpretation and enforcement of statutes and rules are limited to interpretations of the Uniform Firesafety Standards[2] of which the Division pursuant to statute is the final administrative interpretive authority.  Its ongoing review of the Uniform Firesafety Standards is done by one of the Bureau's managers in conjunction with the Department's Division of Legal Services, rather than by the Bureau's Fire Protections Specialists.  If a local issue arises concerning the uniform standards, a local inspector or building owner may ask for the Bureau's advice in interpreting the standard at issue.  If such a request is made, you advise, the procedures set forth in the Administrative Procedures Act relating to the issuance of declaratory statements pursuant to Section 120.565, Florida Statutes, would be followed.  Although you advise that the Fire Protection Specialist might have some involvement in the process, it is more likely that a Bureau manager and the Division of Legal Services would be involved in issuing the declaratory statement.  We are advised that neither the Fire Protection Specialist nor the two engineers are part of the Bureau's management.

Furthermore, despite the provision in Section 633.081, Florida Statutes, authorizing the Division to inspect any and all buildings and structures which are subject to the requirements of Chapter 633 or Section 509.215, Florida Statutes [public lodging establishments], when the Division has reasonable cause to believe that a violation of Chapter 633 or Section 509.215, a rule promulgated thereunder, or a minimum firesafety code adopted by a local authority, may exist, you advise that the Division does not have any authority, interpretive or otherwise, over the minimum firesafety standards which each municipality, county, and special district with firesafety responsibilities is required by Section 633.025, Florida Statutes, to adopt.  You write that the Division may address the minimum fire safety standards only in those limited circumstances where the local jurisdiction is not doing its job.  This is an infrequent occurrence, you write.  With respect to the occupancies specified in Section 633.022, Florida Statutes, we are advised that a supervisor within the Bureau would be asked to conduct the inspection in cases where a dispute exists with the local authorities.  Ordinarily, the local authorities would interpret and apply the Uniform Fire Safety Standards to these occupancies within their jurisdictions.  The Fire Prevention Specialist advises that he may have been asked to conduct such inspections two (2) or three (3) times over a 13 or 14 year period when he was a Bureau supervisor.  He recalls being asked to look at a nursing home in 1984 to determine whether the fire alarm system was activated..   However, investigations of the cause and origin of fires ordinarily is performed by the Bureau of Fire and Arson Investigations, rather than the Bureau of Fire Prevention, you advise.

In their secondary employment with the company owned solely by themselves, these three Division employees propose to conduct fire and life safety seminars for architects, engineers, electrical contractors, firesafety inspectors, and the general public, i.e., organizations, community interest groups, and businesses.  They also propose to conduct life safety inspections for non State-owned or leased facilities under contract with counties and municipalities, as qualified firesafety inspectors, for county school boards, and for private businesses such as "fraternities," "sororities,"

banks, etc.  Finally, they propose to provide consulting services for architectural and engineering firms, private businesses, and the federal government.  They propose to provide these services both in-state and out-of-state.

You advise that the Bureau does not regulate any of the people or entities that the employees wish to serve.  Architects, engineers, and electrical (fire alarm) contractors are regulated by the Department of Business and Professional Regulation ("DBPR").  The local firesafety inspectors are required to be certified and then recertified every three (3) years by the State Fire College.  Course approval and continuing education credits would have to be obtained from the DBPR and from the State Fire College, rather than from the Bureau.

One of your primary concerns has to do with the responsibility of the Division under Chapter 633, Florida Statutes, to act as the final administrative authority concerning uniform fire safety standards.  You are concerned about the appearance of impropriety that might result from permitting these employees to pursue their requested secondary employment.

Relevant to your inquiry are the following provisions of the Code of Ethics for Public Officers and Employees:

 

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 or she is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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 or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]

 

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others.  This section shall not be construed to conflict with s. 104.31.  [Section 112.313(6), Florida Statutes.]

 

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 or her official position for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity.  [Section 112.313(8), Florida Statutes.]

The first part of Section 112.313(7)(a), Florida Statutes, prohibits these Division employees from having employment or contractual relationships with a business entity or agency which is subject to the regulation of, or is doing business with, their agency.  The second portion of Section 112.313(7)(a) prohibits these Division employees from having employment or contractual relationships which create continuing or frequently recurring conflicts between their private interests and the performance of their public duties, or which impede the full and faithful discharge of their public duties.

For purposes of the Code of Ethics, a "conflict of interest" is defined at Section 112.312(8), Florida Statutes, to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest."  Based upon this definition, the Court in Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982), held that Section 112.313(7)(a) "establishes an objective standard which requires an examination of the nature and extent of the public officer's [or employee's] duties together with a review of his [or her] private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'"  Therefore, one of the issues that we need to determine here is whether the Division employees' interests and their private responsibilities could coincide with their public duties, as employees with the Bureau of Fire Prevention, to "tempt dishonor," rather than with whether, through self-imposed limitations, they could avoid succumbing to the temptation of using their positions for private benefit and thereby disregarding their public duties and the public interest.  See CEO 92-30 and CEO 91-34.

 As we previously have advised that ownership of a business entity, i.e., the employees' company, constitutes an employment or contractual relationship with that entity (See CEO 83-84 and 87-20), we are of the opinion that the employees' ownership of their company would constitute an employment or contractual relationship with their company.  We also are of the opinion that the employees' "agency" for purposes of Section 112.313(7)(a) is the Bureau of Fire Prevention, because as used in the Code of Ethics the term "agency" means

 

 any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.  [Section 112.312(2), Florida Statute.]

 

In previous opinions we have said that the Legislature intended by this definition to define a State employee's agency as the lowest departmental unit within which his or her influence might reasonably be considered to extend.  See, for example CEO 82-75.  Under this definition the Bureau of Fire Prevention is the lowest departmental unit within which their influence might reasonably be considered to extend.  Because the company formed by the employees  with which they would have a contractual or employment relationship  would not be regulated by or be doing business with the Bureau of Fire Prevention, we find that the first part of Section 112.313(7)(a) does not apply.

In applying Section 112.313(7)(a), we have been cognizant of Section 112.316, Florida Statutes, which provides:

 

CONSTRUCTION.--It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency, or county, city or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county city, or other political subdivision of the state involved.

 

This provision requires that the Code of Ethics not be interpreted to preclude private employment which does not interfere with the full and faithful discharge of a public employee's duties.  See CEO 92-30 and CEO 86-30.

In CEO 93-26, we observed that because one of the central purposes of Section 112.313(7)(a) is to prohibit those situations in which a public officer or employee obtains preferential treatment from, or awards public business to, a business with which he or she is associated, we have interpreted Section 112.316 to apply to situations in which an employee is not in a position to give advice or recommendations regarding any business transacted between his or her agency and business entity.  See CEO's 76-10, and 88-2.  In CEO 85-73 we also advised that where a DHRS employee, for example, seeks employment with a private entity, we will look at the employee's role in the regulatory process over the private entity and the employee's role in any contracts between the Department and the private entity.  We also consider whether the employee is in a position to make referrals of agency clients to the private entity. If there is no conflict in these respects between the outside employment and the employee's duties, we have found no prohibited conflict of interest.  See also CEO 87-51.

With  respect to the Fire Prevention Specialist's involvement in conducting fire and life safety seminars and performing life safety consulting, we find that despite the discrepancies between the responsibilities listed in his written position description and those described to our staff, under the second part of Section 112.313(7)(a), with one exception, these proposed activities do not appear to overlap with his public responsibilities.  Because he no longer is a supervisor and, therefore does not teach classes, and because he apparently is not responsible for either acting as an interpreting authority for the uniform firesafety standards or determining compliance or noncompliance with the uniform standards--a local function, we are of the opinion that no continuing or frequently recurring conflict between his private interests and the performance of his public duties or impediment to the full and faithful discharge of his public duties is created.  Additionally, he has no regulatory authority over any of the people or entities that he wishes to serve through the company and he is not in a position through his public employment to refer clients to his private business.

However, we also find that if the Fire Prevention Specialist were permitted to conduct his secondary employment for the architects, engineers and contractors whose work on or in State-owned or State-leased building he inspects in his public capacity, he may be in a position to review and critique the work of the same architects, engineers, electrical contractors, and businesses for which he proposes to conduct seminars and consultations, thereby creating a possible prohibited conflict of interest.  Because we view the Fire Protection Specialist's role as inspector as including the duty to conduct his inspections with impartiality, that is, to view  construction or building sites impartially, without potential conflict with his private interests that might stem from a concern for satisfying or pleasing the clients of his company (See CEO 94-4), we recommend that he not provide services through his company for any of the people or entities whose work he currently is inspecting.  Consequently, we find that with one exception no prohibited conflict of interest under the second part of Section 112.313(7)(a), Florida Statutes, would be created were the Fire Protection Specialist to become secondarily employed conducting training, putting on seminars, and providing consultations, as he proposes.  Clearly, in a situation in which a public employee has no public duties or responsibilities in relation to his or her private employment, he could not be tempted to compromise the performance of his public duty.  Here, the Fire Protection Specialist's situation is one in which he has few if any public duties to potential clients with which he wishes to privately contract.

Similarly, with one exception, we find that the two Engineer II employees would not have prohibited conflicts of interest in violation of the second part of Section 112.313(7)(a) were they to become secondarily employed by their company conducting fire and life safety training and seminars and consultations.  Were they to conduct fire and life safety training and seminars and consultations for the same architects, engineers, and electrical contractors, and/or their firms, whose plans relative to State-owned or State-leased properties they review and whose work is inspected by the Bureau to determine compliance with the Uniform Firesafety Standards, we find that a prohibited conflict of interest would exist because they would be in a position to review and critique the work of the same architects, engineers, electrical contractors, and businesses they propose to serve.   Again, we view the engineers' roles as plans reviewers as including the duty to conduct their reviews with impartiality, that is, to conduct their reviews impartially, without potential conflict with their private interests that might stem from their concern for satisfying or pleasing the clients of their company. Therefore, we recommend that they not provide services through their company for any of the people or entities whose plans they currently are reviewing.

As noted above, in situations where a public employee has no public duties or responsibilities in relation to his private employment, i.e. conducting seminars or performing consultations for the federal government or for people or entities located and doing business out-of-state, he could not be tempted to compromise the performance of his public duties.  Consequently, no prohibited conflict

of interest would be created for either the Fire Protection Specialist or the engineers under such circumstances.

Finally, Section 112.313(6), Florida Statutes, and Section 112.313(8), Florida Statutes, prohibit these employees from using any public resources or any information not available to the general public to further their private business activity.  In other opinions, we have noted that Section 112.313(8), Florida Statutes, prohibits public officers and employees from imparting information gained through their official positions and not available to the general public. See CEO 82-66, CEO 87-53, CEO 93-5, and CEO 93-9.  Thus, assuming that the employees provide their seminars and training to architects, engineers, and electrical contractors who either work on projects outside of the jurisdiction of the State Fire Marshal, or whose work is not currently being reviewed or inspected by them in their public capacities, then, as long as their courses do not include information that they obtained through their positions, as employees of the Bureau of Fire Prevention, and that is not available to members of the general public, these provisions would not be implicated.  


Accordingly, we find that as long as the Fire Protection Specialist's and the engineers' company is not serving persons or entities whose work they are currently reviewing or inspecting in their public capacities, no prohibited conflict of interest under the second part of Section 112.313(7)(a) would be created were they to become secondarily employed by a company that the employees create to provide training, consultations, and seminars both in-state and out-of-state for architects, engineers, electrical contractors, private businesses, and the federal government, and to contract with counties, municipalities, county school boards, and private businesses to conduct life safety inspections of non State-owned or leased facilities.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on  January 22, 1998 and RENDERED this 27th day of January, 1998.

 

 

 

__________________________

Kathy Chinoy

Chair

 


[1]          

            The Division of State Fire Marshal in the Department of Insurance consists of the Bureau of Fire Prevention, the Bureau of Fire and Arson Investigations, and the Florida State Fire College.

[2]

             Section 633.022, Florida Statutes, provides that the uniform firesafety standards adopted by the Department of Insurance shall apply to all new, existing, and proposed state-owned and state-leased buildings and all new, existing, and proposed hospitals, nursing homes, assisted living facilities, correctional facilities, public schools, transient public lodging establishments, public food service establishments, elevators, migrant labor camps, mobile home parks, lodging parks, recreational vehicle parks, recreational camps, residential and nonresidential child care facilities, facilities for the developmentally disabled, motion picture and television special effects productions, and self-service gasoline stations.