CEO 87-7 -- January 29, 1987

CONFLICT OF INTEREST

EROSION PREVENTION DISTRICT COMMISSIONER

PROVIDING CONSULTING SERVICES TO ENGINEERING FIRM

DOING BUSINESS WITH DISTRICT

To: (Name withheld at the person's request.)

SUMMARY:

A prohibited conflict of interest would be created were an erosion prevention district commissioner to contract to provide consulting services to an engineering firm which is under contract to the district. Section 112.313(7)(a), Florida Statutes, prohibits a public officer from having any employment or contractual relationship with a business entity which is doing business with her agency.

QUESTION:

Would a prohibited conflict of interest be created were you, a Commissioner of the Captiva Erosion Prevention District, to enter into a contract to provide consulting services to an engineering firm which has a contract with the District?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you were appointed to hold elective office as a Commissioner of the Captiva Erosion Prevention District, an independent special taxing district. You are also a partner in a consulting firm which does legislative and regulatory consulting.

You advise that the Captiva Erosion Prevention District recently selected an engineering firm to do offshore monitoring work along the gulf shoreline of Captiva Island. This same engineering firm was awarded a contract by the Florida Department of Natural Resources to prepare a beach management plan for Pinellas County, which will become part of a statewide beach management plan. Your firm has been asked by the engineering firm to subcontract to prepare economic and biological studies for the county beach management plan.

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

This provision prohibits a public officer from having any employment or contractual relationship with a business entity which is doing business with his agency. Thus, you would be prohibited from working for a firm which is contracting with the District.

In CEO 81-28 we found that a county commissioner should not be employed as a salesman by an engineering company doing business with the county under the Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes. Furthermore, in CEO 80-79 (question 1) we advised that Section 112.313(7)(a), Florida Statutes, would prohibit the law firm of a county housing finance authority member from representing a lending institution doing business with the authority, unless one or more of the exemptions of Section 112.313(12), Florida Statutes, would be applicable.

We have reviewed the exemptions provided by Section 112.313(12), Florida Statutes, and have determined that none of these exemptions would apply to the situation which you have presented. For example, these provisions would allow certain contractual relationships if the business was awarded under a system of sealed, competitive bidding. See Section 112.313(12)(b), Florida Statutes. Here, the District awarded the contract to the engineering firm through a competitive selection process whereby the District members voted after examining a chart which listed all of the competing firms by name along with the various amounts proposed by each bidder. See CEO 81-28.

In CEO 78-12, we found no prohibited conflict of interest where a member of an erosion prevention district board was employed as the head of maintenance of a golf course by a development which had donated money for a district project. In that opinion, we considered Section 112.316, Florida Statutes, and found that the board member's employment did not interfere with the full and faithful discharge of his public duties. We based this decision on two factors. First, the board member was not in the position by virtue of his private employment to give advice or recommendations as to the development's dealings with the district. Secondly, as the development was to pay the entire cost of the project, enabling the district's funds to be applied to other projects, the board member was not in a position to benefit his employer to the detriment of other landowners within the district. Here, however, the engineering firm was one of several competing for the contract with the District, and you will be in a continuing position to review the performance of the firm.

Accordingly, we find a prohibited conflict of interest would be created were you to enter into a contract to provide consulting services to an engineering firm which has a contract with the District.