CONFLICT OF INTEREST

COUNTY COMMISSIONER ENGINEER DOING BUSINESS IN COUNTY

To: Kenneth W. Doherty, P.E. (Charlotte County)

SUMMARY:

Absent a renewal or extension of a contract with the county, an engineer's firm's work related to the contract will be "grandfathered," and thus not prohibitively conflicting, under Sections 112.313(3) and 112.313(7)(a), Florida Statutes, should the engineer become a member of the county commission. Absent an exemption, a prohibited conflict of interest would be created under Sections 112.313(3) and 112.313(7)(a) were his firm to contract with the county, and a prohibited conflict would be created under Section 112.313(7)(a) were his firm to contract with another company contracting with the county if his firm's business with the other company is conducted under his professional licensure. No frequently recurring conflict or impediment to the full and faithful discharge of his public duties under the second part of Section 112.313(7)(a) would be created were his firm to work on some types of private sector projects in the county; but it would be conflicting for him or a member of his firm to represent a client before the county commission. CEO 08-6, CEO 07-2, CEO 02-14, CEO 01-15, CEO 95-28, CEO 94-37, CEO 89-48, CEO 88-43, CEO 88-40, CEO 84-1, CEO 78-83, and CEO 77-126 are referenced.

QUESTION 1:

Would a prohibited conflict of interest be created were you, an engineer whose company contracts with an architectural firm which holds an existing contract with the County, to qualify as a candidate for election to the County Commission and, if successful, take office as a Commissioner?

Question 1 is answered in the negative.

By your letter of inquiry, we are advised that you are considering becoming a candidate for election to the Charlotte County Commission. In addition, you advise that you have been a resident of the County since 1973, that you are a registered civil engineer in Florida and several other jurisdictions, and that you are the "qualifying P.E.," the president, a director, and a shareholder of your for-profit engineering company. Further, you advise that for approximately the last twenty years, your primary career focus has been the design of professional and collegiate sports facilities, including your current participation on design teams for professional sports facilities in New York City, Washington D.C., Minnesota, and Arizona, and your current participation regarding renovations to the Charlotte Sports Park in Port Charlotte, which will become the spring training facility in 2009 for the Tampa Bay Rays (formerly, the Tampa Bay Devil Rays), regarding which your company is part of a design/build team contracting with the architectural firm hired by the County.

The prohibitions within the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes) relevant to this question provide:

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) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes.]

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. [Section 112.313(7)(a), Florida Statutes.]

We find that a prohibited conflict of interest would not be created under either Section 112.313(3) or Section 112.313(7)(a), Florida Statutes, regarding the existing renovation contract were you to take office as a Commissioner.¹ Under the situation presented, assuming for the sake of argument that you or your company would be acting in a private capacity to provide services to the County, rather than to the architect hired by the County, Section 112.313(3)(b), Florida Statutes, expressly "grandfathers" out of the prohibition contracts entered into prior to qualification for elective office (such as the architectural firm's contract with the County, obviously entered into prior to your qualification for office). Similarly, we find as to your situation, as we have regarding others, that Section 112.316, Florida Statutes, serves to "grandfather" the existing contract out of the prohibitions of Section 112.313(7)(a). See, for example, CEO 08-6 (note 4) and CEO 02-14. Section 112.316 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.

However, note that the grandfathering can cease after you take office if a new renovation contract is entered into after you take office, or if the existing contract is extended or renewed, absent particular circumstances and provisions in the original contract. See, for example, CEO 02-14.

Question 1 is answered accordingly.

QUESTION 2:

Would a prohibited conflict of interest be created for you were your firm to provide services to businesses doing business with the County?

Question 2 is answered as set forth below.

In addition to the facts provided by you set forth above, you advise that you are the certifying professional engineer who signs and seals the documents submitted in furtherance of seeking permits or approvals from the County, and that currently you are the only professional engineer of your company authorized to sign and seal for the firm, regarding the provision of engineering services both inside and outside Florida.

Regarding Section 112.313(3), as you recognize in your inquiry, and as we find herein, the statute would prohibit your firm's contracting with Charlotte County, should you become a Commissioner, absent applicability of an exemption under Section 112.313(12), Florida Statutes.² You would be acting as a public officer to purchase services for your public agency from a business entity (your firm) with which you hold one or more relationships (e.g., director, officer) enumerated in the statute, and you would be acting in a private capacity to sell services to your political subdivision or agency. However, we do not find that the statute would prohibit your firm's contracting with another company (in which you own no interest and occupy no position of governance) which, in turn, is contracting with the County. We have found that "indirectly" doing business does not include situations where the public officer's corporation does business with another business entity that is selling services to his or her agency, and we have found that a public officer does not "act in a private capacity" to sell to his political subdivision or an agency thereof when his company subcontracts with another company that in turn is selling services to his political subdivision or agency. See, for example, CEO 78-83, CEO 88-43, and CEO 07-2.

Regarding the first part of Section 112.313(7)(a), we find that your firm's being hired by (contracting with) the County after you take office would create a prohibited conflict for you because you would hold employment or a contractual relationship with a business entity (your firm) which, by virtue of the hiring/contract, would be doing business with your public agency.³ In addition, we find that a prohibited conflict would be created for you under the first part of the statute were your firm to be hired by another company which is doing business with the County AND were you to be the member of your firm under whose professional (government) licensure your company's work for the other company is handled or delivered, because we find that your personal provision of licensed services to a business entity would constitute a contractual relationship between you and the business entity.⁴ See, for example, CEO 94-37, recognizing that a contractual relationship exists between a licensed insurance agent operating in an incorporated insurance agency and an insured or client of the agency whose business is handled under the license of the agent, and see CEO 95-28, in which we found that a licensed or certified appraiser held a contractual relationship with a client whose appraisal he reviewed and signed.⁵

Question 2 is answered accordingly.

QUESTION 3:

Would a prohibited conflict of interest under Section 112.313(7)(a) be created for you were you to continue providing private sector engineering services in Charlotte County such as are described below?

Question 3 is answered in the negative.

You advise that your company also provides civil engineering services for private sector site development projects, primarily in Desoto and Charlotte Counties, that it rarely is involved in a project requiring approval directly from the Board of County Commissioners, and that it has no intention of seeking professional service contracts directly with Charlotte County. However, you advise, your company regularly provides engineering services associated with obtaining approvals for projects from the County's development review committee (key staff) and associated County departments, although typically you do not attend the related meetings with County personnel. In addition, via a telephone conversation between you and our staff, we are advised that the County Commission must approve all proposed subdivisions, and that your firm rarely is involved in subdivision work in the County (currently being involved in no such work). Rather, you advise, your firm's private sector work in the County primarily concerns projects to be built within existing zoning, such as convenience stores, fast food restaurants, and hardware stores, which do not have to go before the County Commission but which go before the development review committee. Also, you advise that such projects involving your firm have never been turned down by the committee, that none of the members of the committee is a direct employee of the County Commission (rather, they are under the supervision of the County Administrator), and that the County Charter contains a provision prohibiting members of the County Commission from interfering with the performance of the duties of employees under the supervision of the County Administrator.

The second part of Section 112.313(7)(a), which prohibits a public officer from holding employment or a contractual relationship which would create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or which would impede the full and faithful discharge of his public duties, is at issue regarding this question. In CEO 84-1, we determined that no prohibited conflict was present under the second part of the statute where a county commissioner was president of an engineering and surveying firm doing work regarding rezoning applications and subdivision plats, even though the applications and plats had to be approved by the board of county commissioners and even though county employees over whom the county commission had authority participated in the county's subdivision process. We reasoned that there was no prohibited conflict for the commissioner/engineer, in spite of the county commission and county commission employee involvement as to plats and subdivisions, because the commissioner's private firm's subdivision work within the county did not amount to a substantial percentage of its income or work. In applying the statute to your situation, we likewise find that your firm's continuation (should you become a Commissioner) of private sector work within the County such as is described in this question will not create a prohibited conflict under the statute. In your situation, you relate that your firm rarely has been involved with subdivisions (currently, none), a type of project which must go before the County Commission, but, rather, that your firm is involved with projects going through the development review committee.

Accordingly, we find that your private sector engineering work within the County as described ⁶ will not create a prohibited conflict for you should you become a Commissioner.

ORDEREDby the State of Florida Commission on Ethics meeting in public session on April 18, 2008 and RENDERED this 23rd day of April, 2008.

____________________________________

Albert P. Massey, III, Chairman

^[1] Neither statute applies to candidates who also are not incumbent officeholders.