CEO 92-45 -- September 3, 1992

CONFLICT OF INTEREST

DEPARTMENT OF NATURAL RESOURCES EMPLOYEE

ASSOCIATED WITH NONPROFIT CORPORATION

CONCERNED WITH PROTECTING MANATEES

To: Mr. Patrick M. Rose, Environmental Administrator, Office of Protected Species, Division of Marine Resources, Department of Natural Resources (Tallahassee)

SUMMARY:

No prohibited conflict of interest would be created were a State agency employee whose public duties involve manatee protection to serve as an uncompensated officer or director of a nonprofit corporation which also is involved in manatee protection efforts. Section 112.313(7)(a), Florida Statutes, would not be violated because uncompensated service as an officer or as a member of the board of directors of a nonprofit corporation does not constitute an employment or contractual relationship. CEO 92-31 and CEO 80-45 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, an employee of the Department of Natural Resources whose official duties include recommending policies on preserving and protecting endangered species, to serve as an officer or director of a private organization whose stated purpose is to protect manatees?

Your question is answered in the negative.

You relate that you are employed by the Department of Natural Resources (DNR) as an administrator in the Office of Protected Species, Division of Marine Resources. In that position, you are responsible for formulating rules to protect manatees, evaluating the effects of development projects on the manatee and its habitat, and administering and supervising other varied aspects of the programs designed to recover the manatee from endangered status. You also have responsibilities involving sea turtle and whale protection efforts.

In 1981 while contracting with the federal government, you were appointed by then-Governor Graham to the Save the Manatee Committee as one of his original appointments. At its inception, the Committee was a trust or committee affiliated with the Florida Audubon Society, whose stated objective was the recovery of the manatee from endangered status by research, public education, legislative reform, law enforcement, and solicitation of funds. Committee members consisted of various prominent individuals from both the public and private sectors. Further, we are advised that the Committee has recently taken steps to become a private, nonprofit corporation, known now as Manatee Protection, Inc.

When you became employed by DNR in 1983, you were authorized by DNR's then-executive director to represent him on the Committee and, until recently, you served on the Committee both in your official capacity as the executive director's designee and in your personal capacity. Although you indicate that you are no longer DNR's official representative to the organization, you continue to be involved in your personal capacity. You question whether your involvement with the organization 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 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.

This provision prohibits a public employee from having an employment or contractual relationship with a business entity which either is subject to the regulation of, or is doing business with, his public agency. It also prohibits a public employee from having an employment or contractual 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.

It our view that the nonprofit organization is a "business entity" as that term is defined in Section 112.312(5), Florida Statutes. Thus, the primary issue which must be addressed is whether your association with the organization constitutes an employment or contractual relationship. In that regard, we consistently have opined that uncompensated service as an officer or director of a private, nonprofit corporation is not an employment or contractual relationship for purposes of Section 112.313(7)(a), Florida Statutes. We recently reaffirmed our interpretation of this provision in CEO 92-31. There we opined that no conflict of interest was created where an appointee to a county local planning agency continued to serve as an uncompensated officer and director of a nonprofit corporation whose members were concerned with growth management issues in the county and which involved itself in administrative and other proceedings opposed to the position of the county when it disagreed with the county's decisions regarding growth management. Based upon the rationale contained in CEO 92-31, we do not view your uncompensated service to Manatee Protection, Inc. as creating an employment or contractual relationship prohibited by Section 112.313(7)(a), Florida Statutes.

We are aware of concerns expressed by DNR's executive director relating to your public position responsible for overseeing the State's manatee protection program and your personal involvement with Manatee Protection, Inc. Her concerns appear to be based in part upon the perception that is created when an organization a public employee is associated with participates in or criticizes actions of the employee's public agency. However, as we stated in CEO 80-45, where a DNR employee was active in a nonprofit corporation concerned with aquatic plant control, some of whose members were regulated by the Department,

[i]n essence, the Code of Ethics is directed more toward prohibiting conflicts of interest arising from private economic considerations than toward prohibiting other situations arising from a public officer's or employee's private, nonprofit activities which may also present conflicts of interest.

In your situation, there do not appear to be private economic considerations. Instead, it appears to be more of a situation where the organization sometimes may be critical of the Department for not doing enough to protect endangered species. However, inasmuch as Section 112.313(7)(a), Florida Statutes, was enacted to prohibit conflicting employment or contractual relationships and none appear to exist in your case, your involvement with Manatee Protection, Inc. would not be circumscribed by our interpretation of this provision.

There are two other provisions of the Code of Ethics which you should be mindful of in carrying out your public responsibilities while involved with Manatee Protection, Inc. These are Section 112.313(6), which prohibits a public employee from corruptly using his official position to secure a special benefit for himself or others, and Section 112.313(8), which prohibits a public employee from disclosing or using information gained by reason of his official position for the personal gain or benefit of himself or any other person or business entity. Therefore, we would suggest that where the organization is a participant in the process of formulating agency policy, you take appropriate measures to ensure that you avoid the appearance of impropriety in carrying out your public responsibilities.

Your question is answered accordingly.