CEO 04-4 -- March 25, 2004

A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a Fish and Wildlife Conservation Commission ("FWC") biologist to be employed in a private capacity with a water management district ("WMD") to map and describe the vegetation structure of a woodstork colony. The intersection of the biologist's FWC duties and responsibilities regarding the WMD coupled with his private, paid work for the WMD would create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or would impede the full and faithful discharge of his public duties. CEO 85-1 and CEO 87-73 are referenced.

Would a prohibited conflict of interest be created were a Fish and Wildlife Conservation Commission biologist to accept outside employment with a water management district to map and describe the vegetation structure of a wood stork colony?

Under the circumstances set forth herein, your question is answered in the affirmative.

By your letter of inquiry and additional information supplied by FWC's general counsel to our staff, we are advised that ... ("employee") serves as a biologist with the Florida Fish and Wildlife Conservation Commission ("FWC"),^[1] in the Division of Wildlife, Bureau of Wildlife Diversity and Conservation, Conservation Coordination Section (relating to birds). Further, we are advised that the employee's primary duties for FWC are management and research regarding woodstorks and other water birds, that he monitors and comments on (in his FWC capacity) water management district ("WMD") activities or permits involving wading birds, and that he provides data to WMDs regarding wading bird colonies. In addition, we are advised that the employee (in his FWC capacity) works specifically with the St. Johns River Water Management District ("SJRWMD") to monitor nesting success for a woodstork colony, and that he is currently developing a contract with SJRWMD to monitor stork productivity within SJRWMD in 2004. Also, we are advised that the employee (in his FWC capacity) may make recommendations regarding permitting that would affect SJRWMD, that he has been asked to comment on herbicide-related issues regarding snail kites on lakes in central Florida, and that he has reviewed a permit for the collection of tissue samples from wading birds for a pesticide study on Lake Apopka by a private contractor for SJRWMD. Additionally, although we are advised that the employee does not have day-to-day contact with SJRWMD, he (in his FWC capacity) occasionally provides SJRWMD with information on wading bird colonies and makes recommendations to help protect the colonies.

Privately, the employee seeks outside employment with SJRWMD to map and describe the vegetation structure of the woodstork colony, to generate a report for SJRWMD addressing the current status of the woody plants in the forested wetlands associated with the colony and containing recommendations for maintaining suitability of the site for resting wading birds;^[2] and that such wildlife and habitat inventories are not normally provided by FWC for lands or waters managed by other State agencies.^[3]

Upon this factual predicate, you inquire as to whether the employee’s proposed secondary employment would create a prohibited conflict, citing to previous decisions of ours (CEO 85-1 and CEO 87-73), and stating your belief that the decisions contradict one another, in that, as you maintain, they distinguish between GFC/FWC employees consulting with private landowners on wildlife management issues (CEO 87-73, "conflicting") and GFC/FWC employees consulting with lake owners on private lake management (CEO 85-1, "not conflicting").

As it was in our two opinions cited above, Section 112.313(7)(a), Florida Statutes, again is at issue. The statute provides:

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 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.

In CEO 85-1, Question 3, we found that a prohibited conflict of interest would be created were a GFC fisheries biologist supervisor to accept employment involving aquatic plant transplanting on public lakes for individual riparian owners, but that no prohibited conflict of interest would be created were he to accept outside employment involving restoration, management, and aquatic plant transplanting on private lakes. However, our finding of no prohibited conflict regarding work for private lake owners was grounded in facts of the opinion showing that the biologist supervisor had no public-capacity (GFC) role regarding private lakes. In CEO 85-1, a section of the biologist supervisor’s bureau other than his section provided technical advice to private lake owners on restoration, management, and plant transplanting. In contrast, in the instant situation the employee personally has several public-capacity (FWC) roles or interfaces regarding his proposed secondary employer (SJRWMD). In CEO 87-73, Question 2, we found that a prohibited conflict of interest would be created were a GFC wildlife biologist to accept outside employment consulting with landowners concerning beaver control and quail, dove, turkey, and deer management. Similar to CEO 85-1, our finding of a conflict in CEO 87-3 was factually grounded in that the biologist had public-capacity (GFC) responsibility for providing technical assistance to landowners and had GFC responsibility for making recommendations concerning permitting of landowners. In the instant inquiry, the employee has several public-capacity interfaces with his would-be secondary employer (including monitoring and commenting on WMD activities or permits which involve wading birds and working specifically with SJRWMD to monitor nesting success for the wood stork colony) analogous to the interfaces which "disqualified" the biologist in CEO 87-73.

In sum, we determine that our previous decisions do not contradict one another, in that the conflict or lack of conflict found in them is not based on whether the secondary employment would have involved water, land, or, for that matter, wetlands, but, rather, that they are grounded in facts showing an intersection or lack of intersection of the public employee's public duties and the interests of his secondary employer. The law requires that a public officer’s or public employee's public duties and his private interests be separate and distinct, lest they coincide to create a situation which "tempts dishonor." Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4^th DCA 1982).^[4]

Accordingly, we find that a continuing or frequently recurring conflict between the employee'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 were he to be employed in his private capacity for the water management district.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 11, 2004and RENDERED this 25th day of March, 2004.

^[1] Formerly, the Florida Game and Fresh Water Fish Commission ("GFC").

^[2] We are advised that the estimated cost for such services is about $1,200.

^[3] We are advised that the colony is located on lands acquired by the State from a corporation in 2003, and that the lands are now managed by the Division of Forestry (of the Department of Agriculture and Consumer Services).

^[4]We by no means impugn the personal integrity of the employee who is the subject of this opinion, and we do not suggest that he would give in to the temptation recognized by the statute. The statute does not require an actual transgression; it is preventive. Further, the fact that the employee's would-be secondary employer also is a public agency does not negate the conflict, inasmuch as the statute is applicable to employment or contractual relationships with public agencies, business entities, and others, and inasmuch as the interests of various public agencies are not monolithic.