CEO 98-4 -- March 5, 1998
CONFLICT OF INTEREST
WATER MANAGEMENT DISTRICT EMPLOYEE TEACHING COURSE
AT STATE UNIVERSITY WHERE DISTRICT CONTRACTS WITH UNIVERSITY
AND HE AUTHORIZES SUCH CONTRACTS
To: Dr. Jayantha Obeysekara, Director, Division of Hydrologic Systems Modeling, South Florida Water Management District (West Palm Beach)
A prohibited conflict of interest is created under the second part of Section 112.313(7)(a), Florida Statutes, where a division director with a water management district teaches a hydrologic modeling class as an adjunct professor at a State university. The water management district has contracts with the university under which the employee's division submits work orders, and the employee approves contract requisitions authorizing the preparation of other contracts with the university. Thus, the situation creates a continuing or frequently recurring conflict of interest, or one which impedes the full and faithful discharge of public duties. Notwithstanding whether the contracts between the water management district and the university are entered into pursuant to Section 240.241, Florida Statutes, there is no indication that the requirements of Section 112.313(12)(h), Florida Statutes, have been complied with in order to waive the existence of a conflict.
Is a prohibited conflict of interest created where you, a water management district employee, teach part-time as an adjunct professor at a State university, where the water management district has entered into various research-related contracts with the university and you have been involved in approving work orders under those contracts and requisitioning other contracts with the university?
Your question is answered in the affirmative.
Through your letter of inquiry and other information provided to our staff, we are advised that you are employed by the South Florida Water Management District as the Division Director of the Hydrologic Systems Modeling Division of the Planning Department. Part of your job responsibilities include overseeing employees who are project managers on contracts with outside entities, including Florida Atlantic University ("FAU"). You further advise that you are employed as an adjunct professor at FAU, preparing for and teaching a class in hydrologic modeling on your own time without use of District resources. You state that the individual who invited you to teach was a former District employee who, in his current position with the University, does a substantial amount of work on projects for the District. An individual who heads the Geography and Geology Department is your teaching supervisor. Additionally, you relate that you did not actually sign a teaching contract with the University. However, you were compensated for teaching even though you have not yet negotiated the checks pending the outcome of our opinion.
You further advise that over the past seven years the District has entered into five contracts with FAU. Of those contracts, only one was administered through your Department, and that contract is now closed. Another department within the District presently has a cooperative agreement with the University, and your division has submitted several work orders through this agreement. Although you have been a project manager on contracts or work orders with FAU in the past, you no longer serve as contract manager on any District contract with the University. However, as Division Director you are called upon to approve contract requisitions authorizing the preparation of contracts with FAU as well as with other contractors. Finally, you advise that the District also contracts with other universities and that most of the contracts with educational institutions are not competitively awarded. You question whether the situation creates a prohibited conflict of interest.
The applicable provision of the Code of Ethics for Public Officers and Employees is Section 112.313(7)(a), Florida Statutes, which 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 or she 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 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 (1995).]
Section 112.313(7)(a) prohibits a public employee from having an employment relationship with an agency which is doing business with his agency. It also prohibits the employee from having an employment relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which impedes the full and faithful discharge of his public duties. For purposes of Section 112.313(7)(a), the "agency" of a water management district employee is the District. See CEO 96-3.
In CEO 95-23, we opined that where a board member was on the faculty of a university contracting with the member's board, the first part of Section 112.313(7)(a) was not violated because we did not view interagency agreements to constitute "doing business" for purposes of the statute. We went on to conclude in that opinion that a conflict was not created under the second part of Section 112.313(7)(a) either, because there was no overlap between the board member's duties on the board and his duties with the university. Even if we apply the rationale of CEO 95-23 to your situation and find no conflict of interest under the first part of Section 112.313(7)(a)--since the intergovernmental agreements between the District and FAU would not constitute "doing business" for purposes of Section 112.313(7)(a)--we still would have to consider whether a continuing or frequently recurring conflict, or an impediment to the full and faithful discharge of your public duties, exists under the second part of Section 112.313(7)(a).
We are concerned that you are in a position to direct contracts to or approve payments for services between the District and FAU. We have not been made aware of the process by which the District determines from whom it wants to obtain research services from educational institutions other than your representation that such decisions are generally not made under any type of competitive bid process. There is no indication that such contracts might be considered "sole source" contracts. At any rate, it seems possible that you could be tempted to favor the selection of FAU over other institutions because of your adjunct relationship with it and because of your presumed familiarity with its research capabilities. Whether or not you would actually succumb to such temptation is not the point. Section 112.313(7)(a) was interpreted by the Fourth District Court of Appeal in Zerwick v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982), as establishing
an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'
As we have stated in other opinions, our concern is whether the interests of a public employee's secondary employer and the nature of his private responsibilities could coincide with his public duties to "tempt dishonor," rather than with whether the employee, through self‑imposed limitations, could avoid succumbing to the temptation of using public resources for private benefit, thereby disregarding his public duties and the public interest. Thus, the issue is not whether you are qualified to teach the course at FAU--because clearly you are--but whether teaching at FAU for compensation creates an impermissible overlap with your duties at the Water Management District. In our view, it does. However, where you teach without being compensated, our precedent suggests that a prohibited conflict would not exist. See CEO 76-21.
You have also asked us to evaluate whether the exemption described in Section 112.313(12)(h), Florida Statutes, may be applicable to absolve the existence of a conflict. Section
112.313(12)(h) provides an exemption where
[t]he transaction is made pursuant to s. 240.229 or s. 240.241 and is specifically approved by the president and the Chancellor. The Chancellor shall submit to the Governor and the Legislature by March 1 of each year a report of the transactions approved pursuant to this paragraph during the proceeding year.
This exemption could act to excuse a conflict of interest under Sections 112.313(3) or 112.313(7) provided its terms are met. Our understanding of this exemption suggests that it could apply to those situations where the transaction between the business entity or agency with which the public employee has or is seeking an employment or contractual relationship concerns the development of research relating to a trademark, patent, or copyright by the employee and a university. It specifically requires the approval of the university president and chancellor of the State University System and must be listed in a report that the Chancellor submits to the Legislature annually. Thus, even though all cooperative agreements between the Water Management District and FAU are entered into pursuant to Section 240.241, Florida Statutes, the other requirements of the exemption have not been met. Therefore, the exemption contained in Section 112.313(12)(h) has no applicability to your situation.
Accordingly, we find that a prohibited conflict of interest would be created under the second part of Section 112.313(7)(a), Florida Statutes, were you to teach a course for compensation at FAU while, in your position with the Water Management District, you have the authority to approve work orders with the University and to approve contract requisitions involving the University.
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 5,1998 and RENDERED this 10th day of March, 1998.