CEO 86-69 -- September 17, 1986

CONFLICT OF INTEREST

GAME AND FRESH WATER FISH COMMISSION EMPLOYEE BIDDING ON CONTRACT WITH COMMISSION

To: Mr. David W. Green, Attorney, DeFuniak Springs

SUMMARY:

No prohibited conflict of interest would be created were a fish management specialist with the Game and Fresh Water Fish Commission to bid on a lakes management and operation contract to be awarded by the Commission, and to leave his employment with the Commission if he receives the contract. Section 112.313(12)(b), Florida Statutes, exempts contracts awarded by sealed competitive bids provided certain conditions are met. As the employee has played no role in his public capacity with respect to the proposed contract, Section 112.3185(2), (3), and (4), Florida Statutes, would not apply. Although Section 112.3185(5) limits the amount of money which can be paid to a former agency employee for contractual services during the first year after leaving employment, that limitation may be waived where the agency head determines that waiver would result in significant time or cost savings for the State.

QUESTION:

Would a prohibited conflict of interest be created were a fish management specialist with the Game and Fresh Water Fish Commission to bid on a lakes management and operation contract to be awarded by the Commission, and to leave his employment with the Commission if he receives the contract?

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

In your letter of inquiry and in a telephone conversation with our staff, you have advised that Mr. W. A. Ray currently is employed by the Game and Fresh Water Fish Commission as a Fish Management Specialist whose duties include management of lakes under the jurisdiction of the Commission. You also advise that he plans to bid on a lakes management and operation contract to be awarded by the Commission under a system of sealed, competitive bidding. The contract would include lake management duties similar in nature to those which he currently performs, but would require additional work and services not provided currently by State employees. If awarded the contract, he intends to leave his employment with the Commission.

The Code of Ethics for Public Officers and Employees provides in relevant part:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1985).]

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. [Section 112.313(7)(a), Florida Statutes (1985).]

Section 112.313(3) prohibits a public employee from acting in a private capacity to sell any goods or services to his agency, and Section 112.313(7) prohibits a public employee from having any employment or contractual relationship with a business entity which is doing business with his agency.

However, where business is awarded by the agency under a system of sealed, competitive bidding to the lowest or best bidder, Section 112.313(12)(b), Florida Statutes, creates an exemption to the prohibitions of subsections (3) and (7), provided that the following conditions are met:

1. The official or his spouse or child has in no way participated in the determination of the bid specifications or the determination of the lowest or best bidder;

2. The official or his spouse or child has in no way used or attempted to use his influence to persuade the agency or any personnel thereof to enter such a contract other than by the mere submission of the bid; and

3. The official, prior to or at the time of the submission of the bid, has filed a statement with the Department of State, if he is a state officer or employee, or with the supervisor of elections of the county in which the agency has its principal office, if he is an officer or employee of a political subdivision, disclosing his interest, or the interest of his spouse or child, and the nature of the intended business.

You have advised that neither the subject employee nor any of his family members have participated or will participate in the determination of the bid specifications or of the lowest or best bidder; nor have they attempted to influence or persuade the agency or agency personnel concerning the contract except by the submission of the bid. The employee will have filed the required disclosure statement prior to, or simultaneously with, the submission of his bid. Under these conditions, it is apparent that the subject employee will have complied with the terms of this exemption and therefore would not be precluded from receiving the lakes management contract while remaining an employee of the Commission.

In addition, Section 112.3185(2), Florida Statutes, prohibits a State employee from being employed by one who is contracting with his agency, if the employee participates in the procurement of the contract, as follows:

No agency employee who participates through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, or auditing or in any other advisory capacity in the procurement of contractual services shall become or be, while an agency employee, the employee of a person contracting with the agency by whom the employee is employed. [Section 112.3185(2), Florida Statutes (1985).]

As you have indicated that the employee has played absolutely no role with respect to the proposed contract as an employee of the Commission, this provision would not be applicable.

Section 112.3185 also contains three post-employment restrictions on State employees:

No agency employee shall, after retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract in which the agency employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, or investigation while an officer or employee. [Section 112.3185(3), Florida Statutes (1985).]

No agency employee shall, within 2 years of retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract for contractual services which was within his responsibility while an employee. [Section 112.3185(4), Florida Statutes (1985).]

The sum of money paid to a former agency employee during the first year after the cessation of his responsibilities, by the agency with whom he was employed, for contractual services provided to the agency by him, shall not exceed the annual salary received by him on the date of cessation of his responsibilities. The provisions of this subsection may be waived by the agency head for a particular contract if the agency head determines that such waiver will result in significant time or cost savings for the state. [Section 112.3185(5), Florida Statutes (1985).]

Section 112.3185(3) and (4) precludes a State employee from leaving that employment to work for a contractor in connection with a contract for which he had some responsibility while an agency employee. However, as you have indicated that the subject employee has had no involvement with the proposed contract, these provisions would not be applicable.

Section 112.3185(5) limits the amount of money which can be paid to a former agency employee for contractual services during the first year after leaving employment. You have advised that the first annual payment under the lakes management contract, which would be one for "contractual services," probably would exceed the subject employee's present annual salary. Because of the language used in the statute, we are of the opinion that the prohibition refers to the "gross" amount paid by the agency, rather than the "net" amount received by a former employee after subtracting the costs incurred by the former employee in the performance of the contract. The language used, "sum of money paid to a former agency employee," would seem to allow no other interpretation.

However, Section 112.3185(5) allows an agency to waive this limitation for a particular contract if the agency head determines that waiver would result in significant time or cost savings for the State. Although the statute makes the waiver decision a matter of discretion for the agency head, it would appear that a contract which is awarded properly under a system of sealed, competitive bidding should result in significant cost savings for the agency. You have advised that the employee understands that such a waiver could be obtained on this project.

Accordingly, under the circumstances presented we find that no prohibited conflict of interest would be created were the subject Game and Fresh Water Fish Commission employee to be awarded the lakes management and operation contract.