CEO 88-58 -- September 8, 1988

CONFLICT OF INTEREST

DEPARTMENT OF TRANSPORTATION ENGINEER

SELLING SOFTWARE PROGRAM TO PRIVATE CONSULTING FIRMS

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

SUMMARY:

No prohibited conflict of interest generally would exist were a resident engineer for a construction office within a District of the Florida Department of Transportation to sell a computer program which he has developed to his agency or to business entities doing business with his agency. Section 112.313(12)(f), Florida Statutes, would provide an exemption to the conflict existing under Section 112.313(3), Florida Statutes, were he to sell his program to the District, as the cost of the program is less than $500. There generally would be no prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, regarding sales made to consulting firms doing business with the District, with the exception of sales made to firms doing work under the review or supervision of the construction office at the time of the sale.

QUESTION:

Would a prohibited conflict of interest exist were an engineer for a District of the Department of Transportation to sell a software program to private consulting firms who may do business with the District?

Your question is answered in the negative, subject to the exceptions noted below.

In your letter of inquiry you advise that over the past five years you have been working on a computer program that designs stormwater pipes under roads. The program, which currently sells for $400, has been purchased by about 30 consulting firms and entities across the country, including Hillsborough and Pinellas Counties in Florida.

You recently began work with the Florida Department of Transportation as the Resident Engineer for the Clearwater Construction Office. Your responsibilities include supervising ten project engineers, each of whom have roughly four inspectors working for them, on such projects as large bridge construction, highway overpasses, and road widening. You are supervised by the District Construction Engineer in Tampa.

You state that you have absolutely no input into which consultants are chosen to design a project, as this is done by the Production Section in Tampa. The Clearwater Construction Office does review and comment on the plans at several stages, but drainage review is carried out by the Drainage Section out of Tampa.

You have indicated your desire to continue marketing and selling your computer program regardless of the fact that a purchaser may be doing business with the Department of Transportation. You see no conflict because you are neither involved in choosing consulting firms to design projects nor in directly governing any construction change decisions.

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.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1987).]

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 (1987).]

Section 112.313(3) prohibits you from selling any goods to your own agency. Section 112.313(7)(a) prohibits you from having a contractual relationship with a business entity which is doing business with your agency. We believe your agency to be District 7, as the Clearwater Construction Office comes under the supervision of the District 7 Engineer in Tampa.

Because of this agency designation, you seemingly are prohibited from selling any of your computer programs to District 7 under the provisions of Section 112.313(3). However, the Code of Ethics provides an exemption under Section 112.313(12)(f), Florida Statutes, where the total amount of the subject transaction with the public agency does not exceed $500. Since the cost of your computer program is $400, no prohibited conflict of interest would be created were you to sell to the District.

Section 112.313(7)(a) would be violated were you to sell any of your computer programs to business entities doing business with District 7, as the one-time sale of goods is considered to be a contractual relationship. See CEO 87-44. In order for a prohibited conflict of interest to exist, the sale of the program would have to be made contemporaneously with the business relationship between District 7 and the purchasing business entity.

As you have no input into which consultants are chosen to design a project and as the Construction Office which you head is not involved in all of the projects of the District, we find the following Code provision to be applicable:

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. [Section 112.316, Florida Statutes (1987).]

Therefore, we find that you may sell your program to business entities doing business with District 7, with certain exceptions. Because of your position in the Construction Office and the role you play in review of projects, in order to avoid a situation where your private interests could interfere with your public duties, we find that you are prohibited from selling your computer program to an entity which contemporaneously is doing work over which your Construction Office has supervisory or review responsibilities.

Accordingly, we find that no prohibited conflict of interest would exist were you to sell your computer program to District 7 of the Department of Transportation or to any consulting firm doing business with District 7, unless the firm is doing work which is under the review or supervision of your Construction Office at the time of the sale.