CEO 87-8 -- January 29, 1987

CONFLICT OF INTEREST

FORMER DEPARTMENT OF TRANSPORTATION EMPLOYEE

WORKING FOR ENGINEERING FIRM IN CONNECTION WITH

PRELIMINARY STUDY ON ROAD CONSTRUCTION PROJECT

To: W. E. Grissett, Jr., Attorney, Jacksonville

SUMMARY:

No prohibited conflict of interest would be created were a former Department of Transportation employee to be employed by an engineering firm as project engineer for a study under a contract awarded to the firm by the Jacksonville Transportation Authority. Neither Section 112.3185(3) nor Section 112.3185(4), Florida Statutes, would be violated because the employee did not participate while with D.O.T. in the procurement of the contract, and because the contract was not within his responsibility while an employee of D.O.T.

QUESTION:

Would a prohibited conflict of interest be created were a former district project development and environmental services engineer with the Department of Transportation to be employed by an engineering firm in connection with a preliminary engineering and environmental study contract to be awarded by the Jacksonville Transportation Authority?

Your question is answered in the negative.

In your letter of inquiry you advise that .... was employed with the Department of Transportation as a District Project Development and Environmental Services Engineer. In September of 1986 the employee announced his retirement from the Department, effective at the end of that year. At that time he was approached by representatives of an engineering firm about the possibility of employment with them upon his retirement.

In the fall of 1986 there was proposed a preliminary engineering and environmental study for a road construction project in Duval County which would be administered by the Jacksonville Transportation Authority (JTA). The study was to be a joint effort supported financially by the City of Jacksonville, the JTA, and the Department of Transportation. The study was to be conducted by a consulting firm selected by the JTA with input from representatives from the Department of Transportation and the City.

Prior to his retirement, the employee took a day of annual leave to make a presentation to the JTA Board of Directors at the request of the engineering firm, with the full knowledge of his supervisor at the Department. The engineering firm proposed that the employee would be the project manager for the study, beginning after his retirement from the State.

The employee's only contact with the project during his employment with the Department involved the distribution of what is known as an "advanced notification." An "advanced notification" requests that the 30 to 35 agencies which receive the document advise the Department of any concerns or efforts that they think should be involved or included in the study. Any comments as a result of the notification which was sent have been turned over to another Department employee who will serve as district project coordinator on the study. In a conversation with our staff, the employee advised that advanced notification is done before the consultant is hired, and any information received from the notification is then given to the consultant. The employee also advised that in the normal sequence of events, that is, if not for his retirement, he would have been responsible for the Department's role in processing project studies of this type. The Department's role is to see that the consulting work done on the project meets federal standards, in order to allow the project to qualify for federal highway funds.

The Code of Ethics for Public Officers and Employees provides in relevant part:

No agency employee shall, after retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract in which the agency employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, or investigation while an officer or employee. [Section 112.3185(3), Florida Statutes (1985).]

No agency employee shall, within 2 years of retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract for contractual services which was within his responsibility while an employee. [Section 112.3185(4), Florida Statutes (1985).]

Section 112.3185(3) prohibits the former Department employee from having any employment with any business entity in connection with any contract in which he participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, or investigation. Under the circumstances presented, it does not appear that the employee participated in any of these ways in the procurement of the consulting contract, as it has been the JTA and others with the Department and the City who have been responsible for the award of the contract. Moreover, as the employee's role was limited to the distribution of an "advance notification" for the project study, his role could hardly be termed "substantial."

Section 112.3185(4), Florida Statutes, prohibits the former employee from being employed with any business entity within two years of his retirement in connection with any contract for contractual services which was within his responsibility while an employee of the Department. Here, although the employee would have been responsible for processing projects of this type but for his retirement, his role prior to retirement was limited to the "advanced notification." Therefore, we find that the proposed contract was not within his responsibility while an employee of the Department.

Finally, we note that Section 112.313(6), Florida Statutes, prohibits a public employee from corruptly using his official position to secure a special privilege or benefit for himself or another, and that Section 112.313(8), Florida Statutes, prohibits a public employee from disclosing information not available to members of the general public and gained by reason of his official position for the personal gain or benefit of himself or another. Based upon the information provided us, it does not appear that the employee's appearance, while on annual leave before the JTA Board of Directors at the request of his future employer, with the knowledge of his supervisor, involved the use of his official position with the Department or the use of information not available to the general public.

Accordingly, we find that no prohibited conflict of interest would be created were the former Department of Transportation employee to be employed by the engineering firm after his retirement if the firm were to be awarded the preliminary engineering and environmental study contract from the JTA and if the former employee served as project engineer for that study.