CEO 94-31 -- July 14, 1994

CONFLICT OF INTEREST

COUNTY PUBLIC HEALTH UNIT EMPLOYEE

PRIVATELY CONSULTING WITH HORTICULTURAL AND

PEST CONTROL INDUSTRIES

To: Mr. Ara R. Manoogian, Attorney (Boynton Beach)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were an environmental specialist with a county public health unit to privately consult with companies providing pest control services. Pest control companies are not regulated by the public health unit or doing business with it. Too, while the possibility exists that a company with which the employee consults could be subjected to public health unit enforcement for misuse of pesticides or illegal disposal, the employee's public duties do not include such activities, and there is no reason to find that the mere possibility of such action creates a continuing or frequently recurring conflict. CEO's 92-48, 92-17, 90-65, 89-23, 85-16, and 79-81 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were an environmental specialist with the air quality assurance section of a county public health unit privately to consult with pest control businesses?

Your question is answered in the negative, under the specific factual circumstances presented.

In your letter requesting a formal opinion, you indicate that you represent Robert M. Barry, Ph.D., who is employed as an Environmental Specialist II with the Palm Beach County Public Health Unit (PHU). We are advised from the materials accompanying your request that your client is employed as a quality assurance representative for the quality assurance section of the PHU's Division of Environmental Science and Engineering and that he is seeking a determination of whether his outside activities create a conflict of interest prohibited by the Code of Ethics for Public Officers and Employees.

More specifically, we understand that the employee has provided classroom instruction in horticultural pest control, structural pest control, and general science during the evening hours at a local community college and also has provided technical assistance and educational training to members of the pest control industry. This training has included customized classes requested by business owners covering marketing, operations, and training procedures, as well as CEU (continuing education unit) training for pest control operators who are certified and licensed by the Florida Department of Agriculture and Consumer Services.

We further are advised that the employee's consulting work with the pest control industry concerns his supervisors at the PHU because of the possibility that the businesses with which he consults could be subjected to enforcement action by the PHU should they misuse pesticides or engage in the illegal disposal of pesticides. While his supervisors do not object to his providing classroom instruction at the community college, they do object to his consulting work with the pest control industry, have requested that he discontinue it, and have counselled him to seek an opinion from this Commission as to its propriety.

The applicable Code of Ethics provision, Section 112.313(7)(a), Florida Statutes, 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 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 private interests and the performance of his public duties, or that would impede the full and faithful discharge of his public duties.

The first part of Section 112.313(7)(a) prohibits a public employee from having an employment or contractual relationship with a business entity or agency which is either doing business with or regulated by his agency, in this instance the public health unit. See CEO 90-65. The second clause prohibits a public employee from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which impedes the full and faithful discharge of public duties.

The employee is aware that he could not consult with entities regulated by the PHU or doing business with it pursuant to the first part of Section 112.313(7)(a). In fact, he has indicated that he would not perform consulting activities of any nature for any business regulated by or doing business with either the Department of Health and Rehabilitative Services or the Palm Beach County Public Health Unit. The employee's supervisors acknowledge that pest control businesses are not directly regulated by the Department of Health and Rehabilitative Services, although its Toxicology and Hazardous Assessment Program does evaluate health risks associated with pesticides and advises the Department of Agriculture and Consumer Services. At any rate, although public health unit employees are considered to be employees of the Department of Health and Rehabilitative Services pursuant to Section 154.04(2), Florida Statutes, their "agency" for purposes of the Code of Ethics is the public health unit. See CEO 90-65. Here, neither the Palm Beach County Public Health Unit, the Department of Health and Rehabilitative Services, nor this employee are directly involved in the regulation of pest control businesses. Therefore, we are satisfied that a prohibited conflict of interest would not exist under the first part of Section 112.313(7)(a), where the employee consults with pest control businesses during his off-duty hours because his agency, the public health unit, does not "regulate" or "do business with" pest control businesses.

Under the second clause of Section 112.313(7)(a), we have not been made aware of any impediment to duty by this employee's proposed consulting activities. The employee has represented that he neither makes nor receives private business calls while working his regular duty hours at the PHU. Instead, he evidently relies upon an answering machine connected to his residential telephone. Nor is there any suggestion that he has or would use any PHU resource in furtherance of his private consulting work during the evenings or on weekends, which would also contravene the misuse of position prohibition contained in Section 112.313(6), Florida Statutes. Thus, we do not view the situation as an impediment to duty.

The second part of Section 112.313(7)(a) also prohibits a public employee from having a continuing or frequently recurring conflict between his private interests and the performance of his public duties. Section 112.312(8), Florida Statutes, defines "conflict of interest" to mean

a situation in which regard for private interest tends to lead to disregard of a public duty or interest.

In CEO 89-23, we opined that it would be a conflict of interest under Section 112.313(7)(a) for an employee in the air pollution control section of a public health unit to perform asbestos inspections within the county, where other employees in his section regulated or were involved in asbestos matters. That opinion referenced CEO 85-16, where we opined that an environmental health specialist with the environmental health division of a public health unit could be employed by a children's home inspected by her division, when that particular employee's duties did not involve inspecting children's homes or daycare facilities.

Here, although we appreciate the PHU division director's concerns about the potential for conflict, we do not see any overlap between the employee's public responsibilities as they relate to air pollution monitoring and his private consulting work with pest control businesses. It appears to be more of a question of whether one of his prospective clients might violate laws or regulations which could subject it to PHU action, a conceivable though evidently infrequent circumstance. Thus, a more appropriate rationale for examining the situation would be that employed in CEO 92-48, in which we opined that it was not a conflict of interest for motor carrier compliance officers within the Department of Transportation to be employed by road construction firms, when they might be called when working in their public capacity to cite a vehicle belonging to their private employers. There we found that although the officers could be expected to zealously perform their private functions for the construction firms, we did not find that they necessarily would be tempted to disregard traffic laws and other laws in an effort to curry favor with their private employers. See also CEO 92-17 involving a Florida Marine Patrol Officer owning and operating a charter boat service, in which we reasoned that though the "[o]fficers would be tempted and even actively engaged in an effort to secure successful fishing for the customers of their charter boats, within the bounds of the law," we did not find that "they necessarily would be tempted to disregard fishing laws and other marine laws in an effort to satisfy the recreational appetites of those customers." And see CEO 79-81 involving a Florida Highway Patrol trooper providing escort services for oversized loads on the State's highways.

It is also significant in our minds that this employee's regular duties with the PHU do not involve pesticide matters, and that even if a pest control company were subjected to PHU enforcement action due to misuse of pesticides or unlawful disposal practices, this employee would not necessarily be involved in the PHU's response action. Therefore, based upon the facts before us, we conclude that the situation does not create a continuing or frequently recurring conflict between the employee's private consulting work for pest control companies and his public duties as an Environmental Specialist II with the PHU's Air Quality Assurance Section, and that Section 112.313(7)(a), Florida Statutes, would not be violated by his proposed activities.

Your question is answered accordingly.