CEO 07-12 -- April 25, 2007

CONFLICT OF INTEREST

STATE UNIVERSITY PROFESSOR'S CORPORATION
CONTRACTING WITH UNIVERSITY

To: Name withheld at person's request

SUMMARY:

Under the particular circumstances presented, a prohibited conflict of interest would not be created under either Section 112.313(3) or Section 112.313(7)(a), Florida Statutes, were a State university to contract with the firm of a professor of the university for architectural/engineering services, based upon the application of Section 112.316, Florida Statutes, because of the professor's lack of responsibility in his university capacity regarding the business between his firm and the university. CEO 76-38, CEO 83-74, and CEO 88-66 are referenced. 1


QUESTION:

Would a prohibited conflict of interest be created were a corporation of which you are president to contract with a State university to provide architectural/engineering services, where you are employed as a professor of architecture at the university but where your university position does not involve the selection of firms for university projects or the development of university projects?


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


By your letter of inquiry and a telephone conversation between you and our staff, we are advised that you are a professor of architecture at the University of Florida and that you are president of an architecture corporation existing since 1982 (firm). In addition, we are advised that from 1981 through 1987 you served as chairman of the University's campus planning assembly (an organization apparently having influence on the development of University construction projects), resulting, in part, in your firm limiting its university-level projects to institutions other than the University. 2 However, because, as you state, nineteen years have elapsed since you held any University position (i.e., campus planning assembly position) where you may have had responsibility regarding the selection of firms for University projects, and because you will be retiring from the University in May 2008 (after thirty years of teaching), you seek our opinion as to whether the Code of Ethics now would prohibit your firm from seeking and performing work on a University project.3


Sections 112.313(3) and 112.313(7)(a), Florida Statutes, are prohibitions within the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes) relevant to your inquiry; they 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.]


If Sections 112.313(3) and 112.313(7)(a) were applied in isolation, a prohibited conflict would be created for you. You would be acting in a private capacity under the second part of Section 112.313(3) to sell services to the University (your public agency) and you would hold employment or a contractual relationship with your firm, a business entity doing business with your public agency, the University, by virtue of their contract, under the first part of Section 112.313(7)(a).4

However, the Code of Ethics contains another provision, 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.


In prior decisions, we have applied Section 112.316 to negate the literal effects of Sections 112.313(3) and 112.313(7)(a) in situations where a public officer or employee lacked any public capacity responsibility regarding the relationship between his public agency and his private business. See, for example, CEO 76-38 (county property appraiser renting property to be used as voting precinct) and CEO 88-66 (DHRS district intake counselor supervisor contracting to provide emergency shelter for dependent children). Likewise, we find that in your situation your lack of a University role regarding the contracting between your firm and the University supports our application of Section 112.316.

Accordingly, under the particular circumstances presented in your inquiry, we find that neither Section 112.313(3) nor Section 112.313(7)(a), Florida Statutes, would prohibit the University from contracting with your firm.


ORDERED by the State of Florida Commission on Ethics meeting in public session on April 20, 2007 and RENDERED this 25th day of April, 2007.


________________________
Norman M. Ostrau, Chair

[1]For prior opinions of the Commission on Ethics, go to www.ethics.state.fl.us

[2]In this regard, you received a favorable opinion from us in 1983 (CEO 83-74).

[3]You advise that the project will be built by the University, that it will be off-campus, that it will be in a predominantly minority area, that the University is attempting to get minorities involved in the development of it, and that, because your firm is a minority business enterprise (MBE), the project creates a great opportunity for both your firm and the University.

[4]By telephone, you informed our staff that the University will be a party to the contract with your firm, if your firm is selected for the project.