CEO 75-92 -- April 28, 1975

STANDARDS OF CONDUCT

PROPRIETY OF OUTDOOR RECREATION PLANNER, DEPARTMENT OF NATURAL RESOURCES, ENGAGING IN PRIVATE CONSULTING SERVICE WITH CITIES AND COUNTIES RELATING TO RECREATION FACILITIES

To: Donald A. Gerteisen, Outdoor Recreation Planner, Division of Recreation and Parks, Department of Natural Resources, Tallahassee

Prepared by: Carol Ann Turner

SUMMARY:

The Code of Ethics prohibits a public officer or employee from using for his personal gain or benefit information gained by reason of his public position. Section 112.313(6), F. S. (1974 Supp.). Were an outdoor recreation planner with the Division of Recreation and Parks to engage in private consulting work with local government entities relative to recreation facilities which might be financed by grants administered by the Division of Recreation and Parks, such employee's knowledge of state policies in the field of recreation as well as knowledge he gained by reason of his public employment would enter into such private consultations. See s. 112.313(6), supra. Further, there is the likelihood that such employment would create a conflict between the employee's private interests and his public duties as prohibited by s. 112.313(5), supra, inasmuch as his division has the responsibility of reviewing local government applications for financial assistance for recreational facilities. The conflicts contemplated in s. 112.313(5) and (6), supra, would inhere in the proposed consulting work, and such business is therefore prohibited.

QUESTION:

Would it constitute a conflict of interest for me, as an outdoor recreation planner employed by the Division of Recreation and Parks, Department of Natural Resources, to contract with counties or municipalities to perform consulting services concerning existing or proposed recreation facilities which may be financed by grants from the Department of Natural Resources?

This question is answered in the affirmative.

Section 112.313(6), F. S. (1974 Supp.), provides: "No public officer or employee of an agency shall disclose information gained by reason of his official position for his personal gain or benefit . . . ." You have indicated in your letter of inquiry that you are responsible for the development and maintenance of a statewide recreation facility inventory; the planning and formulation of feasibility studies of "candidate rivers" for the State Scenic and Wild Rivers System; and that you aid in writing, editing, and updating the Comprehensive Outdoor Recreation Plan. In the performance of your various responsibilities, you have access to information which is not available to the general public and cannot be made available because of the nonreproducible nature of the information or its volume. Although the Comprehensive Outdoor Recreation Plan is available upon request, the data contained therein is in summary form, thus providing you with the advantage of having access to the total data. Your position would provide you with knowledge of areas of recreational inadequacies and with subjective knowledge about current policies with regard to the funding of proposed facilities. You assert that in performing services as a consultant you will be utilizing education and experience acquired prior to your employment with the Department of Natural Resources. However, we must take notice of the fact that in addition, you have supplemented your previous knowledge with information which became available to you as a result of your favored position. Furthermore, it would be an impossibility for you to limit yourself to the utilization of knowledge and experience acquired prior to your employment; you could not avoid making use of information and knowledge acquired through your position with the Department of Natural Resources in performing the consulting services about which you inquire. We are therefore of the opinion that it would be a violation of s. 112.313(6), supra, for you to contract with counties or municipalities for such services while holding your present public employment.

The Code of Ethics further provides:

" . . . nor shall an officer or employee of an agency accept other employment that will create a conflict between his private interests and the performance of his public duties, or will impede the full and faithful discharge of his public duties . . . ." [Section 112.313(5), F. S. (1974 Supp.).]

You have enumerated as one of your official responsibilities the review of local government applications for financial assistance in programs administered by the Division of Recreation and Parks. You have also noted the possibility that you may be required in your official capacity to review an application submitted by a municipality you have served as a consultant. Although you indicate that you would excuse yourself from your official responsibilities in such event, it is foreseeable that you may attempt, even if unconsciously, to manipulate the operations of the Division of Recreation and Parks. Although you may avoid an overt conflict such as is prohibited by the law, it may be impossible to avoid a conflict of an inchoate nature. The possibility of conflict is so great that we believe a violation of the essence of the law would exist. In view of recent history and the pervasive desire of the American people to be served with integrity and fidelity by the people employed in government service, we feel that it is vital to avoid not only actual conflicts of interest but also marginal conflicts which may give the appearance of impropriety. Compliance with the strict letter of the law is not enough, and a generous attitude by public officers towards the full implementation of the Code of Ethics should be the standard.

We are of the opinion that the conflicts contemplated by s. 112.313(5) and (6), supra, would inhere in the type of private business you have described to us, and such business is therefore prohibited.