CEO 01-10 -- June 12, 2001

CONFLICT OF INTEREST

FLORIDA BUILDING COMMISSION MEMBER TEACHING COURSE CAUSED TO BE DEVELOPED AND PROVIDED BY BUILDING COMMISSION AS PART OF CORE CURRICULUM MANDATED BY STATUTE

To: Suzanne H. Schmith, Staff Attorney, Florida Building Commission, Florida Department of Community Affairs (Tallahassee)

SUMMARY:

A teacher or trainer of continuing education courses developed or caused to be developed and provided by the Florida Building Commission as part of a core curriculum mandated by statute to be developed by the Building Commission or certified by an administrator hired by the Building Commission, who also is a member of the Building Commission, would have a contractual or employment relationship with a business entity prohibited by Section 112.313(7)(a), Florida Statutes, notwithstanding the development of the core new Florida Building Code curriculum through contracts with outside educational institutions and entities, and the development and certification of module and other courses by an administrator hired by the Building Commission through the Department of Community Affairs.

Because the Building Commission ultimately is responsible for the development of the core curriculum and module courses and the certification of all courses developed by other persons or entities and certified by the Training Program Administrator hired by the Building Commission, as well as for the development of the system of administering and enforcing the Florida Building Code, a continuing or frequently recurring conflict between the Building Commission member's private interests and the performance of her public duties, as a Commission member, or an impediment to the full and faithful discharge of her public duties as a Building Commission member also would exist under the second part of Section 112.313(7)(a).

Because no provision of Chapter 553, Florida Statutes, requires that a Building Commission member also be a compensated teacher, trainer, or provider of continuing education courses, the exemption of Section 112.313(7)(b) does not apply here to permit the Building Commission member's proposed activities as a continuing education teacher or trainer. Her acting as a trainer or teacher is not a facet of air-conditioning contracting.

QUESTION:

Would a prohibited conflict of interest be created were a member of the Florida Building Commission to teach a course developed or caused to be developed by the Building Commission relative to the new Florida Building Code or teach a course certified by an administrator hired by the Building Commission?

Your question is answered in the affirmative.

You advise that you are requesting this opinion on behalf of . . . , an air conditioning contractor who is a member of the 23 member Florida Building Commission which was created pursuant to Section 553.74, Florida Statutes. Members of the Building Commission are appointed by the Governor for four (4) year terms. They serve without compensation but are entitled to reimbursement for per diem and travel expenses. The air conditioning contractor apparently was appointed from the statutory category of "roofing, sheet metal, or air-conditioning contractor[s] certified to do business in this state and actively engaged in the profession."

You advise further that Section 553.841, Florida Statutes, also directs the Building Commission to establish by rule a Building Code Training Program, to develop and provide a core curriculum, and to advance module courses relating to the Florida Building Code and a system of administering and enforcing the Florida Building Code. Section 553.841(6), Florida Statutes, you write, requires the Building Commission, in coordination with the Department of Community Affairs, the Department of Business and Professional Regulation, the respective licensing boards, and the State Fire Marshal, to "develop or cause to be developed" a core curriculum which is a prerequisite to all specialized and advanced modules, and a set of specialized and advanced module coursework. We are advised that the Building Commission has complied with the first statutory directive by developing the core curriculum through contracts with the Florida State University, the Miami-Dade Community College, and the Southern Building Code Congress International.

You also write that the Building Commission, through its administrative agency, the Department of Community Affairs, issued an "Invitation to Negotiate" in order to hire an administrator for the Building Code Training Program who will be responsible for the development of advanced specialized modules, certification of courses developed by other entities, and the overall coordination of training to all professionals required to take continuing education courses on the new Florida Building Code.

Lastly, you advise that Section 553.841, Florida Statutes, authorizes the Building Commission to enter into contracts with a variety of organizations, including private industry, for purposes of administering the program. However, you relate that the statute does not authorize the Building Commission to license, certify, or otherwise approve of trainers to conduct the "training on the Florida Building Code." You write that the Building Commission intends to rely upon the various licensing boards within the Department of Business and Professional Regulation ("DBPR") to perform that function consistent with their current authority and practice.

Given these circumstances, you ask whether the air conditioning contractor member of the Florida Building Commission may become certified by the DBPR as a trainer in the curriculum developed through the Building Training Program and receive compensation for teaching courses related to the new Florida Building Code. In teaching the courses, the member is not sure at this time whether she would be teaching the courses on behalf of a school or program that she develops or as a contract employee of a school that she has no financial interest in.

The most relevant provision of the Code of Ethics for Public Officers and Employees to your inquiry is Section 112.313(7)(a), Florida Statutes, which provides as follows:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--

(a) 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 or she 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 or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties.

. . . .

(b) This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance.

The first part of Section 112.313(7)(a) prohibits the Building Commission member from having an employment or contractual relationship with a business entity which is doing business with or is regulated by her agency. The second part prohibits the Building Commission member from having a contractual or employment relationship which creates a continuing or frequently recurring conflict between her private interests and the performance of her public duties, or which impedes the full and faithful discharge of her public duties.

In CEO 96-17, we addressed similar issues with respect to a member of the State Board of Architecture and Interior Design who asked whether a prohibited conflict of interest would be created were he to become an approved provider of continuing education courses for architects licensed in Florida. There we found, among other things, that a prohibited conflict of interest would be created under Section 112.313(7)(a) were the member to become a provider and instructor of continuing education courses. We found that in light of his Board's authority to establish criteria for the approval of continuing education courses and providers and to approve such courses, providers, and instructors, were the member to submit his application to his Board for its approval of him or an entity created by him to be a provider or instructor, he would have a prohibited contractual relationship with a business entity which was regulated by his agency, the Board. We also found that a continuing or frequently recurring conflict between the Board member's private interests and the performance of his public duties or an impediment to the full and faithful discharge of his public duties would be created by his seeking approval of himself as a provider and/or instructor for purposes of teaching continuing education courses due to the Board's authority over and role in the development of administrative rules regarding such courses and the requirements for the renewal of architect's licenses and the Board's approval of providers and instructors.

We based our decision in CEO 96-17 in part upon CEO 77-28 and CEO 87-61, Question 2. In CEO 77-28, we opined that a person serving as executive director of the State Board of Accountancy would be prohibited by Section 112.313(7)(a) from teaching a professional development course for compensation, which course would qualify for continuing professional education credits and would be sponsored by a professional organization. We advised that, while the Board of Accountancy generally does not regulate accountancy professional organizations, to the extent that such organizations sponsor professional development courses that must be approved for credit by the Board, such organizations are subject to the regulation of the Board. Therefore, we opined that the executive director would have a prohibited employment or contractual relationship with a business entity which was subject to the regulation of his agency. We opined further that if the executive director were to teach a course sponsored by a professional organization, an impediment to the full and faithful discharge of his public duties also would exist because, as executive director to the Board, he was responsible for designing and implementing all Board decisions, procedures, and programs, as well as for drafting proposed rules implementing and interpreting the Florida Accountancy Law. Consequently, we advised that his public duties would put him in the position of assisting the Board and its Committee on Continuing Professional Education to evaluate matters which would relate directly to his private interests.

We similarly opined in CEO 87-61, Question 2, that a Criminal Justice Standards and Training Commission member who also was a law enforcement training center director would be prohibited from acting as a consultant to persons involved in the training of law enforcement and corrections personnel in the State. We advised that, because the Criminal Justice Standards and Training Commission is responsible for certifying law enforcement officers, correctional officers, and correctional probation officers, as well as instructors, and for establishing training standards and curricular requirements and adopting a program regarding mandatory continuing training or education, his employment as a consultant to persons involved in the training of law enforcement and correctional personnel would impede the full and faithful discharge of his public duties.

We adhere to our reasoning in those opinions and find here that, as a trainer or instructor of continuing education courses developed or caused to be developed and provided by the Building Commission as part of a core curriculum, the Building Commission member would have a conflict of interest prohibited by Section 112.313(7)(a). We are of the view that by having to seek approval of her courses from her own Board, she would have a contractual or employment relationship with a business entity which is regulated by her agency. Section 112.312(5), Florida Statutes, defines the term "business entity" 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.

Thus, whether the Board member is teaching her course through a corporation or other entity created by her or someone else, or is teaching her course(s) as a "self-employed individual," we are of the opinion that she still would have a contractual relationship with a "business entity" regulated by the Building Commission, her agency, notwithstanding the fact that the core new Florida Building Code curriculum may have been developed through contracts with Florida State University, Miami-Dade Community College, and the Southern Building Code Congress International, and an administrator hired by the Building Commission through its administrative agency, the Department of Community Affairs, has been delegated the responsibility of developing advanced specialized module course, certifying courses developed by other entities, and coordinating the training of all professionals required to take continuing education courses on the new Florida Building Code. Because of the Building Commission's responsibilities here, we find that the Building Commission, and, therefore, the Commission member ultimately is responsible for the development of the core curriculum and module courses developed under contracts entered into or approved by the Commission and the certification of all courses developed by other persons or entities and certified by the Training Program Administrator hired by the Building Commission.

Additionally, we are of the view that a continuing or frequently recurring conflict between the Building Commission member's private interests and the performance of her public duties, as a Commission member, or an impediment to the full and faithful discharge of her public duties as a Building Commission member, under the second part of Section 112.313(7)(a), would be created by her seeking certification of and teaching or providing continuing education courses for which she would be compensated. As indicated above, this is due to the Building Commission's authority over and role in the development of the new Florida Building Code core curriculum and the system of administering and enforcing the Florida Building Code.

As we noted in CEO 96-17 and reiterate here, under the second clause of Section 112.313(7)(a) it is not necessary that a public officer or employee actually misuse his or her public position, and this opinion does not make such a finding of misuse or intent to misuse regarding the Building Commission member's conduct. The existence of temptation for a public officer or employee to forsake the objective performance of his or her public duty in favor of his or her own private interests is sufficient to create a prohibited conflict; the existence of such a temptation is to be discerned from an examination of the nature and extent of the public officer's or employee's duties together with a review of his or her private employment or endeavor to determine whether the two are compatible, separate and distinct, or whether they coincide to create a situation which tempts dishonor. See Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982). Clearly, in a situation in which a public officer has no public duties or responsibilities in relation to his or her private employment, he or she could not be tempted to compromise the performance of his or her public duties. However, here, the Building Commission member's situation is one in which she does have public duties with respect to determining continuing education requirements, developing continuing education courses or modules, and hiring someone who would certify courses developed by other entities, while at the same time she may be seeking certification of and/or providing or teaching such courses. Thus, we find that a prohibited conflict of interest exists.

We also are of the opinion that the exemption of Section 112.313(7)(b) does not apply here to permit the Building Commission member's proposed activities as a continuing education teacher or trainer. Typically, as we noted in CEO 95-27, we have discussed Section 112.313(7)(b) relative to situations where a public officer sits on a board that regulates himself or herself or his or her interests and where, by law, persons holding those interests are required or permitted to sit on that board. See, for example, CEO 94-45 and CEO 84-63. Consequently, because Section 553.74, Florida Statutes, requires the Building Commission to consist of 23 members, one of whom must be a roofing, sheet metal, or air-conditioning contractor certified to do business in the State and actively engaged in the profession, Section 112.313(7)(b) permits the subject Building Commissioner to serve on the Commission, notwithstanding the fact that a prohibited conflict of interest may otherwise exist due to the Building Commission's regulation of the Building Code training program and/or development of a core curriculum and module courses required of all licensed building contractors, including the Building Commission member, in order to maintain their licensure. However, because no provision of Chapter 553, Florida Statutes, requires that a Building Commission member also be a compensated teacher, trainer, or provider of continuing education courses, we do not view the Building Commission member's acting as a trainer or teacher as a facet of air-conditioning contracting. Therefore, we find that the Section 112.313(7)(b) exemption does not apply.

Accordingly, we conclude that a prohibited conflict of interest would be created were a member of the Florida Building Commission to teach a course developed or caused to be developed by the Building Commission relative to the new Florida Building Code or teach a course certified by an administrator hired by the Building Commission.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 7, 2001 and RENDERED this 12th day of June, 2001.

__________________________

Howard Marks, Chair