CEO 88-32 -- April 28, 1988

CONFLICT OF INTEREST

FORMER DIRECTOR OF DIVISION OF STATE LANDS,

DEPARTMENT OF NATURAL RESOURCES, LOBBYING OR NEGOTIATING

FOR LAND ACQUISITION PROJECTS

To: Mr. James W. MacFarland, Former Director, Division of State Lands, Department of Natural Resources (Tallahassee)

SUMMARY:

The former Director of the Division of State Lands, Department of Natural Resources, is not prohibited by Section 112.3185(4), Florida Statutes, from lobbying or negotiating with the Department of Natural Resources, with Land Selection Committee agencies, or with the Governor and Cabinet on behalf of an individual, organization, or local unit of government for a land acquisition project if appraisal funds had not been requested or an appraisal completed for that project during his tenure as Director of the Division. Section 112.3185(4) prohibits a former State employee from having employment in connection with a contract for contractual services which was within his responsibility while with the State; here, the matters on which he proposes to seek private employment do not involve contracts for contractual services. The former Director would not be prohibited by Section 112.3185(3), Florida Statutes, from lobbying or negotiating on behalf of a local unit of government, as that provision relates only to employment or contractual relationships with business entities and not with public agencies. However, in order to determine whether the former Director would be prohibited from lobbying or negotiating on behalf of a private individual or organization on land acquisition projects, the facts and circumstances of each particular project and the former Director's involvement while a public employee must be examined to determine whether he participated personally and substantially in any proposed contract.

No prohibited conflict of interest would be created were the former Division Director to work under contract or retainer to the Monroe County Land Authority to assist that agency in implementing a plan for land acquisition, as neither Section 112.3185(3) nor Section 112.3185(4), Florida Statutes, applies to employment with governmental entities such as the Land Authority.

QUESTION 1:

Are you, the former Director of the Division of State Lands, Department of Natural Resources, prohibited from lobbying or negotiating with the Department of Natural Resources, Land Selection Committee agencies, or the Board of Trustees of the Internal Improvement Trust Fund on behalf of any individual, organization, or local unit of government for a land acquisition project, if appraisal funds had not been requested or an appraisal completed for that project during your tenure as Director of the Division?

In your letter of inquiry you advise that you served as Director of the Division of State Lands in the Department of Natural Resources from March of 1983 until March, 1988. You intend to form a consulting business which primarily will be involved in Florida real estate conservation and protection projects.

You further advise that as Director of the Division of State Lands, you have supervised the State's environmental land acquisition programs, including the Conservation and Recreation Lands Program (CARL), the Save Our Coast Program (SOC), and the Environmentally Endangered Lands Program (EEL). In 1985, all funds available from the EEL program were expended, and there are no more State acquisitions using this source of funding. The SOC Program, which was initiated by the Governor and Cabinet in 1982 for the purchase of coastal properties, will be concluded in the near future. Therefore, you advise, the only currently viable State land acquisition program is the CARL Program.

You advise that projects to be included on the CARL list may be proposed by any individual, organization, or agency. All projects then are evaluated by technical staff of each of the CARL Committee members. The six CARL Committee members include the heads of various State resource agencies, including the Department of Natural Resources, which is represented by its Assistant Executive Director. Staff collectively analyze all projects based on the information provided in writing or on their personal knowledge of the project area, without making a site visit. These projects are presented to the CARL Committee, with three votes out of six being necessary for each project to proceed to the next step. You advise that the Division staff is responsible for collecting all the information and providing it to the CARL Committee. Division staff also advises the Assistant Executive Director about the various projects and makes voting recommendations. As this part of the process is handled by environmental specialists, you advised, you are not involved in any material way. You state that you have never proposed a CARL project as an individual or as a Division Director.

Subsequently, Division staff, other CARL agency staff, or the Florida Natural Areas Inventory is assigned to an individual project to do further resource analysis. This analysis includes a site visit, checking the information provided, adding additional information, providing estimated costs of the property, and seeing if other areas could be included that would make a more logical acquisition. This information is collected by the Division and provided to all other CARL Committee members. After public hearings are held, the CARL Committee votes on which projects should receive a final review; four votes are necessary to proceed beyond this stage. You advise that you are not materially involved in this project selection process, either. Upon receiving four votes, a project is sent back to the Division which again divides work with other CARL agency staff and does a further analysis of the costs of the property, the most appropriate boundaries for acquisition, the type of acquisition to be performed, the assessed value of the property, the agency which would manage the property, and any other pertinent information.

Upon receipt of all of this information, the CARL Committee votes on those projects that are to be included in the annual CARL list. In order to be placed on this list, four votes again are required. The CARL Committee then votes to rank the priority of the individual projects; there presently are 59 CARL projects on the list. The Assistant Executive Director votes at the four-vote and ranking stages after meeting with the five Division Directors of the Department and getting their opinions as to which project should go on the list and what their ranking should be.

The Committee's list then is sent to the Board of Trustees of the Internal Improvement Trust Fund for approval. By law, the Trustees can approve the list in whole or part, but cannot move projects from one rank to another.

You advise that the Department has established an internal policy to negotiate and work on only the highest priority projects (currently the top 16 projects), with limited exceptions. To begin this process, the Division requests appraisal money from the Trustees for any project within these priorities. As Division Director, you made the initial recommendation on the timing of when to request the appraisal money and for which projects. Subsequently, appraisers are hired. In most instances, the Chief of the Bureau of Appraisal selected the two most qualified appraisers, although in other instances he involved you and the Chief of the Bureau of Land Acquisition to assist in deciding who would be the best appraisers for a particular project.

Upon receipt and approval of the appraisals by the Chief of the Bureau of Appraisal and yourself, the project would be assigned for negotiations. The appraisals and negotiations are confidential and exempt from public scrutiny until a purchase agreement is signed. If negotiations were successful, the option or contract for purchase would be signed by you and presented to the Trustees for approval. After closing on the property, the Division would lease the property to a State agency for management.

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

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 (1987).]

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 (1987).]

Section 112.3185(4) prohibits a former State employee from having any employment or contractual relationship within two years after leaving the State with any business entity in connection with a contract for contractual services which was within his responsibility as an employee. Clearly, contracts for the purchase of land or an interest in land are not for "contractual services." That term is defined in Section 287.012(4), Florida Statutes, to mean "the rendering by a contractor of its time and effort rather than the furnishing of specific commodities." Although contracts for appraisal services could come within the scope of this term, we note that you are not seeking to work with any appraiser in connection with an appraisal contract with the Department.

Section 112.3185(3), however, requires a more complex analysis. This section prohibits a former State employee from having any employment or contractual relationship with a business entity in connection with any contract in which the employee participated personally and substantially in certain ways. As noted in CEO 82-67 and CEO 86-21, this provision is not limited to contracts for contractual services. In addition, we have advised that this section applies where one has participated in the procurement or development of a contract. See CEO 83-8.

The prohibition applies only to employment or contractual relationships with business entities, and not to governmental entities. The term "business entity" is defined to mean:

any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state. [Section 112.312(3), Florida Statutes (1987).]

Therefore, we find that your employment or contractual relationship with a local unit of government regarding State land acquisition projects would not be precluded by Section 112.3185(3).

The remaining issue is whether you may work for a private individual or organization in lobbying or negotiating for a land acquisition project. Clearly, the Department and the Division of State Lands participate in the procurement or development of contracts for the purchase of property by the Trustees. We have not found dispositive under this Section the fact that a contract was not awarded until after an employee left his agency. See CEO 84-30. Therefore, the issue becomes whether you participated in a particular project as Director of the Division and whether your participation was personal and substantial, through decision, approval, disapproval, recommendation, rendering of advice, or investigation. Given the responsibilities of the Division, it appears that your participation truly would become substantial once the Division was authorized to negotiate for purchase of a project on the CARL list. We note that you do not seek to lobby or negotiate for projects which reached that stage in the acquisition process during your tenure as Director.

However, we are called upon to determine whether your participation was personal and substantial with respect to each project for which the Division and the Trustees may contract. We are unable to make this decision without a review of your specific involvement and the particular circumstances of each project. In other words, it appears that given the prohibition of Section 112.3185(3), we cannot say that you would or would not be prohibited from lobbying in behalf of a project on the basis of the particular stage which that project had reached before you left the Division.

Federal law provides a similar limitation on former officers and employees of the executive branch of the United States Government. Under 18 U.S.C. Section 207(a), former officers or employees are prohibited from representing any person other than the United States before any agency of the United States in connection with any proceeding, contract, claim, or other particular matter involving a specific party "in which he participated personally and substantially as an officer or employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise, while so employed . . . ." Implementing this prohibition, Office of Personal Management Regulations explain:

To participate 'personally' means directly, and includes the participation of a subordinate when actually directed by the former Government employee in the matter. 'Substantially,' means that the employee's involvement must be of significance to the matter, or form a basis for a reasonable appearance of such significance. It requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. A finding of substantiality should be based not only on the effort devoted to a matter, but on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving or participation in a critical step may be substantial. [5 C.F.R. Section 737.5(d).]

In our view, these types of considerations require a detailed review of your involvement with each particular project regarding which you may seek private employment.

We note that appraisals are not records available to the public until a purchase agreement is signed. Section 119.07(3)(q), Florida Statutes. Offers and counteroffers also are confidential under Section 253.025(8)(c), Florida Statutes. Within the Code of Ethics, 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.

You have indicated that your private employment would be limited to projects for which no appraisal has been completed and for which appraisals funds were not requested during your tenure at the Department. Therefore, it does not appear that the private work you contemplate would relate to property about which you had access to confidential information while with the Division.

Your question is answered accordingly.

QUESTION 2:

Are you, the former Director of the Division of State Lands, Department of Natural Resources, prohibited from working under contract or retainer to the Monroe County Land Authority to assist that agency in implementing a plan for land acquisition, where the Board of Trustees of the Internal Improvement Trust Fund approved a proposed operating plan for the Authority which was reviewed by the Division of State Lands during your tenure as Director?

This question is answered in the negative.

In your letter of inquiry you advise that Chapter 86-170, Laws of Florida, authorizes Monroe County to create a Monroe County Land Authority to acquire property in order to protect the natural environment, provide public access or public recreational facilities, preserve wildlife habitat areas, and provide affordable housing to low and moderate income persons. The legislation provides for funding of the Authority after approval by the Governor and Cabinet of the Authority's proposed operating plan. A plan was developed by the Authority with the assistance of the Department of Community Affairs. Although the plan was reviewed by the Division of State Lands and then presented to and approved by the Governor and Cabinet, you made no comments, suggestions, or changes to the final plan. The Authority now is in the process of implementing the plan.

Both of the post-employment restrictions contained in Section 112.3185(3) and (4) are limited to employment or contractual relationships with business entities. As noted above, these provisions therefore do not prohibit employment with governmental agencies. Under Chapter 86-170, Section 1, land authorities are public bodies, corporate and politic, and are governed by the governing board of the county within which they are created.

Accordingly, we find that you are not prohibited from working under contract or retainer to the Monroe County Land Authority to assist them in implementing a plan for land acquisition.