CONFLICT OF INTEREST

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES EMPLOYEES PARTICIPATING IN COST-SHARE PROGRAMS ADMINISTERED BY THE DIVISION OF FORESTRY

To: Mr. Stephen M. Donelan, Senior Attorney, Florida Department of Agriculture and Consumer Services (Tallahassee)

SUMMARY:

No prohibited conflict of interest is created under Section 112.313(7)(a), Florida Statutes, where Department of Agriculture and Consumer Services employees apply to participate in cost-share programs administered by the Division of Forestry, as long as the employees have absolutely no involvement in evaluating their own applications or in monitoring their compliance with program requirements.

QUESTION:

Would a prohibited conflict of interest be created were employees of the Florida Department of Agriculture and Consumer Services to participate in cost-share programs administered by the Division of Forestry?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry, you write that you seek this opinion on behalf of Charles H. Bronson, Commissioner of the Florida Department of Agriculture and Consumer Services (DACS). You explain that the Department's Division of Forestry administers three cost-share programs;the Forest Land Enhancement Program (FLEP), the Forest Land Recovery Program (FLRP), and the Southern Pine Beetle Program (SPB);whose common goals are to encourage and maintain healthy Florida forests. Each program is similar in its eligibility requirements, purpose, and funding mechanism, you write. For each, the landowner commits to utilizing approved forestry management practices in return for financial assistance in implementing those practices. In the FLEP program, the landowner commits to reforestation/afforestation, forest stand or water quality improvement, fish and wildlife habitat, forest health and protection, or fire and catastrophic risk reduction or rehabilitation. The FLRP program is committed to forest restoration, while the SBP program seeks to eradicate or prevent southern pine beetle infestations. You further advise that the funding mechanism in all three programs is on a cost-share basis, with the maximum cost-share eligibility varying from program to program. The Department's website provides additional information about these programs¹, and you further advise that the programs are widely advertised through various means. Whether employees of the Department who are otherwise eligible can participate in these cost-share programs without violating the Code of Ethics is your question.

The ethics statute applicable to your inquiry is Section 112.313(7)(a), Florida Statutes, which provides:

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.

This statute prohibits DACS employees from having contractual relationships which create continuing or frequently recurring conflicts between private interests and the performance of public duties, or which impede the full and faithful discharge of public duties.

In CEO 88-52, we opined that Section 112.313(7)(a) was violated where a city rental rehabilitation program employee applied for a loan to rehabilitate rental property through the program in which he worked. In that opinion, we concluded that a conflict was created because the employee was directly involved in the administration of the program under which he would obtain the loan, the loan did not predate the employee's city employment, he was competing with other applicants for loan proceeds, and the loan clearly benefited the employee by enabling him to rehabilitate his property. See also CEO 77-65, CEO 90-76, CEO 98-3, and CEO 00-12 for other situations where we found that seeking funding from one's own agency created a prohibited conflict.

Conversely, in CEO 03-16, we concluded that a city employee who managed a department which provided loans to qualified homeowners could sell property he owned to buyers who obtained financing from the city. In that opinion, we found that the employee's contractual relationship with the buyers did not impede the full and faithful discharge of his public duties, as the buyers were the primary beneficiaries of the loans, loans were made using objective criteria which could not easily be manipulated, the employee removed himself from all matters involving the loan applications and, historically, there had been funds available to meet demand. Opinions with similar holdings include CEO 84-95, CEO 86-60, CEO 90-38 and CEO 98-19.

Perhaps most analogous to your inquiry is CEO 90-50. There, we were asked whether a prohibited conflict of interest would be created where members of the (then) Game and Fresh Water Fish Commission participated as private landowners in an alligator management program regulated by the Commission. Although they were restricted from profiting on the sale of alligator parts, hides, eggs, etc. (since that would involve contractual relationships with persons regulated by their agency), their primary purpose for seeking to participate in the program was not to make money but to control and manage the alligator population on their private land;a desirable goal, now as much as ever (or perhaps more than ever). Under those conditions, their participation in the program did not violate Section 112.313(7)(a), but we also warned them that any attempt to influence the determination that they qualified for participation in the program, or decisions about the numbers of alligators they could lawfully harvest, or penalties for violating the rules and standards of the program, could violate Section 112.313(6), Florida Statutes, which provides:

No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31.

Distilling all of these principles down to answering your inquiry, we do not believe that DACS employees should necessarily be barred from participating in these agency cost-share programs that are available to all qualifying landowners, as long as they are otherwise eligible, and as long as they play absolutely no role in determining their eligibility for programs or in monitoring their compliance with program requirements. Adherence to those conditions would justify the application of Section 112.316, Florida Statutes, which provides:

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 or her duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, Florida Statutes.]

However, our warning against corruptly using one's position to obtain a special benefit, as prohibited by Section 112.313(6), Florida Statutes, must also be taken to heart by any DACS employee who seeks to participate in the Department's cost-share programs.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 9, 2006 and RENDERED this 14th day of June, 2006.