CEO 77-81 -- May 19, 1977

CONFLICT OF INTEREST

DIRECTOR OF ENGINEERING FOR CITY ACTING AS CONSULTING ENGINEER AND PROVIDING ENGINEERING SERVICES

To: (Name withheld at the person's request.)

Prepared by: Phil Claypool

SUMMARY:

A public employee is prohibited from having a contractual relationship with a business entity which is subject to the regulation of his agency and from having a contractual relationship that will create a continuing or frequently recurring conflict between his private interests and his public duties. Where a municipal director of engineering privately provides engineering consulting services on projects located outside the city, no conflict exists, because such projects are not regulated by the city engineering department, his agency. The same is true regarding projects located within the city which are not regulated in any way by the engineering department. However, should he act as a consultant on a project within the city which must be approved by the department, a prohibited conflict would be created.

QUESTION:

Would a prohibited conflict of interest be created were I, the director of engineering for a city, on my own time to provide engineering consulting services on projects located both in and out of the city and to develop projects of my own within the city?

Your question is answered in the negative, subject to certain conditions specified in this opinion.

In your letter of inquiry and in a telephone conversation with our staff you have stated that you are the Director of the Engineering Department for the City of Fort Pierce. In your position you review and approve all subdivision plans within the city and all parking lot plans, establish and recommend civil engineering policies, and approve engineering plans drawn by the engineering department. At present it is not part of your duties to approve plans for building construction. You have also stated that on your own time you have acted as an engineering consultant to owners of property located outside the city who have developed subdivisions or put in swimming pools. With regard to projects located within the city, you anticipate designing swimming pools and possibly developing as an owner some building projects. Plans for these types of projects are reviewed by city building and zoning officials rather than by the engineering department.

The Code of Ethics for Public Officers and Employees provides 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 is doing business with, an agency of which he 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), F. S. 1975.]

This provision prohibits a public employee from having a contractual relationship with a business entity which is subject to the regulation of his agency and from having a contractual relationship that will create a continuing or frequently recurring conflict between his private interests and his public duties.

It is clear that your performing consulting work on projects located outside the city presents no conflict because such projects are not regulated by the city engineering department, which is your agency pursuant to s. 112.312(2), F. S. 1975. The same is true regarding projects located within the city, such as you propose, which are not regulated in any way by the engineering department. However, should you act as a consultant on a project located within the city which must be approved by the engineering department, for example, a subdivision plan, a prohibited conflict would be created under the above-quoted provision. An example of this is found in CEO 76-2A, a copy of which is enclosed.

Accordingly, subject to the above conditions, we find that the Code of Ethics does not prohibit you on your own time from providing engineering consulting services on projects located inside or outside of the city or from developing projects of your own inside the city.