CEO 03-9 -- August 20, 2003
CONFLICT OF INTEREST
To: Mr. David Fountain, Manager I,
SUMMARY:
No prohibited conflict of interest would be created where County parks and recreation department employees are allowed to live on-site at County parks and provide security in exchange for free ground rent and utilities. Under the circumstances presented, their additional duties would not constitute "acting in a private capacity" to sell their services to the County, as prohibited by Section 112.313(3), Florida Statutes. Instead, it would be viewed as adding responsibilities to their public positions.
QUESTION:
Is a prohibited conflict of interest created where County parks and recreation department employees contract with the County to live on-site at County parks and provide security?
Your question is answered negative, under the circumstances presented.
In your letter of inquiry, you write that you are responsible for hiring persons to live on County park sites in order to provide security. The persons selected provide their own mobile homes and the County prepares the site and pays for their utilities. You indicate that often, persons employed by your department ask to be hired as on-site security and you question whether a prohibited conflict of interest would be created were County parks department employees to contract with their own department under this arrangement.
The applicable provision of the Code of Ethics for Public Officers is Section 112.313(3), Florida Statutes, which provides:
DOING BUSINESS WITH ONE'S AGENCY.—No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's 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 the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she 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 or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to: (a)
(b) Qualification for elective office.
(c) Appointment to public office.
(d) Beginning public employment.
Section 112.313(3) prohibits public employees from acting in their private capacity to sell services to their own agency.
In CEO 90-70, we concluded that Section 112.313(3) was not violated where two sheriff's office employees were given supplemental duties as jail contract monitors, as well as an increase in compensation for these added responsibilities. We stated in the context of that opinion that performing additional duties for one's agency would not constitute "acting in a private capacity," and this rationale was cited with approval in CEO 92-36, CEO 97-3, and CEO 98-12.
More similar factually is CEO 94-19, where we opined that a city police officer could receive free "ground rent" in exchange for security services at a city park. That opinion applied Section 112.316, Florida Statutes, to "construct out" a conflict, as the police officer was not in a position to recommend, supervise, or approve the procurement of security services at the city's park.
In the situation you have described, the County executes agreements with personnel to oversee the security of certain County park properties and, in exchange, security personnel are allowed to place a mobile home on the park property and reside there without cost. As in CEO 94-19, there is nothing to suggest that County parks and recreation department employees who would be interested in this supplemental duty are in positions to recommend, supervise, or approve the procurement of security services at the County's parks, and we can envision that it would be beneficial to have department employees who are familiar with park operations residing on-site at County park facilities.
Accordingly, we find no prohibited conflict of interest would be created were County department employees to provide on-site security services for certain County park sites in addition to their regular duties.
ORDERED by the State of
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Richard L. Spears, Chairman