CEO 76-42 -- February 13, 1976

CONFLICT OF INTEREST

PART-TIME BUILDING INSPECTOR ENGAGED IN BUILDING INDUSTRY

To: Michael D. Chiumento, City Attorney, Flagler Beach

Prepared by: Gene Rhodes

SUMMARY:

Florida Statute s. 112.313(7)(1975) provides that no public officer or employee may hold employment with any business entity which is subject to the regulation of his public agency. Exception is made, however, where such private practice by one holding public employment with the regulating agency is required or permitted by law or ordinance. Therefore, a municipality may hire as a part-time building inspector one who is privately engaged in the building industry so long as such employment is permitted by municipal ordinance, providing he does not engage in inspecting his own work. Such inspection would constitute a violation of Fla. Stat. s. 112.311(1)(1975), which provides that public duty must be exercised independently and impartially.

QUESTION:

Would a prohibited conflict of interest be created were a city to hire a part-time building inspector who is privately engaged in the building industry?

Your letter of inquiry advises us that the city has adopted the Southern Standard Building Code and has amended that document in order to permit the hiring of a part-time building inspector who is engaged privately in the building industry. City of Flagler Beach, Ordinance No. 76-16.

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

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. --

(a) 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, excluding those organizations and their officers, who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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. . . .

(b) This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance. [Emphasis supplied; Fla. Stat. s. 112.313(7)(1975).]

The emphasized portion of the above-quoted provision clearly prohibits a public employee from holding employment with a business entity which is subject to the regulation of his public agency. Obviously, one involved in the building industry is subject to the regulation of the building department. However, the above-quoted provision goes on to exclude from the prohibition contained in the subsection any outside occupation permitted or required by ordinance. The aforementioned Ordinance No. 75-16 explicitly permits such outside employment by the part-time building inspector. Accordingly, the situation you describe would not violate s. 112.313(7).

Notwithstanding the above analysis, we see a prohibited conflict where a building inspector is in the position of approving his own work and that of his associates. This conflict falls within the scope of Fla. Stat. s. 112.311(1)(1975), which provides in pertinent part that "[i]t is essential to the proper conduct and operation of government that public officials be independent and impartial . . . ." Where one is cast in the role of approving either his own work or that of his associates, impartial judgment is severely threatened. This view is in accord with a previous opinion of this commission, CEO 76-2, question 10 (copy enclosed). Accordingly, the subject building inspector is prohibited by the Code of Ethics from inspecting work undertaken in his private capacity as a builder.