CEO 76-16 -- January 16, 1976

CONFLICT OF INTEREST

PUBLIC EMPLOYEE REGULATED IN A PRIVATE CAPACITY BY HIS PUBLIC EMPLOYER

To: William A. Hatch, Staff Attorney, Department of Business Regulation, Tallahassee

Prepared by: Gene Rhodes

SUMMARY:

The term "agency" is defined in the Code of Ethics to mean, in part, any state governmental entity and any department, division, bureau, commission, or authority therein. See Fla. Stat. s. 112.312(2)(1975). Accordingly, an employee of the Division of Hotels and Restaurants in the Department of Business Regulation is not prohibited by s. 112.312(7), dealing with conflicting employment, from seeking a beverage license from the Division of Beverage in the same department. Inasmuch as the two divisions constitute separate "agencies" for purposes of the Code of Ethics, the subject employee's outside employment is not with a business entity subject to the regulation of his own agency, as prohibited by s. 112.313(7).

QUESTION:

Does a prohibited conflict of interest exist where an employee of one division of the Department of Business Regulation holds a license issued by another division of the same department?

Your question is answered in the negative.

Your letter of inquiry advises us that the subject employee is employed in the Division of Hotels and Restaurants and wishes to obtain a license from the Beverage Division. Thus, the subject employee is not employed by the regulatory agency (the Beverage Division), but rather is employed by the Division of Hotels and Restaurants, notwithstanding the fact that both divisions are part of the State of Florida Department of Business Regulation. However, any administrative cases made against him in his private capacity are subject to review by the Board of Business Regulation.

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

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 doing business with an agency of which he is an officer or employee excluding those organizations and their officers who enter into or negotiate a collective bargaining contract with any state, county, municipal, or other political subdivision of the state when acting in their official capacity; nor shall an officer or employee of an agency have or hold 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. [Emphasis supplied; Fla. Stat. s. 112.313(7)(1975).]

Were the subject employee employed by the Beverage Division, the situation you describe would be a prohibited conflict pursuant to the emphasized portion of the above-quoted provision. However, the Code of Ethics defines the term "agency" as follows:

"Agency" means any state, regional, county, local, or municipal governmental entity of this state, whether executive, judicial, or legislative, and any department, division, bureau, commission, authority, or political subdivision of this state, therein, and any public school, community college, or state university. [Fla. Stat. s. 112.312(1)(1975).]

It is significant that the Legislature enumerated the specific governmental bodies which are to be considered agencies. By doing this, they have indicated that each named body (a department, division, bureau, etc.) shall constitute a separate and autonomous agency in applying the provisions of the Code of Ethics. Based upon this interpretation, there is no prohibited conflict of interest in the situation you describe.

This advisory opinion is in accord with a previous opinion of this commission, CEO 74-52, where under the previous version of the Code of Ethics for Public Officers and Employees, Ch. 112, F. S. (1974 Supp.), we advised that an employee of the Division of Land Sales may obtain a license from the Beverage Division.