CEO 77-83 -- June 17, 1977

CONFLICT OF INTEREST

MEMBER OF REGIONAL ADVISORY COUNCIL to D.O.R. SERVING AS CONSULTANT TO ARCHITECTURAL AND ENGINEERING FIRM WHICH HAS DONE BUSINESS WITH D.O.R.

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

Prepared by: Phil Claypool

SUMMARY:

Although a public officer is prohibited by s. 112.313(7)(a), F. S. 1975, from having an employment or contractual relationship with a business entity which is doing business with his agency, the term "agency" is defined as the lowest departmental unit within which his influence might reasonably be considered to extend. Therefore, the "agency" of a Region V Advisory Council to the Department of Offender Rehabilitation is deemed to be the Region V administration. No conflict of interest is created, therefore, where a member of the advisory council privately serves as a consultant to an architectural firm which has done business with D.O.R. in the past and anticipates future business, as all bidding and contracting for capital projects is done through department's Office of Management and Budget rather than through the regional administrations. Also, as the duties of the advisory council lie primarily in the areas of program policy and coordination rather than capital improvements, no frequently recurring conflict, further prohibited by s. 112.313(7)(a), is perceived. However, should the council consider a project on which the architectural firm is likely to be engaged, the subject council member should look to the voting conflict of interest provisions contained in s. 112.3143.

QUESTION:

Would a prohibited conflict of interest exist were I, a member of the Region V Advisory Council to the Department of Offender Rehabilitation, to serve as a consultant to an architectural and engineering firm which may do business with the Department of Offender Rehabilitation in the future?

Your question is answered in the negative.

In your letter of inquiry and in telephone conversations with our staff, you have stated that you have recently retired as Chairman of the United States Parole Commission and have been appointed to the Region V Advisory Council to the Department of Offender Rehabilitation (D.O.R.), which you serve as chairman. In addition, you serve privately as a part-time correctional consultant to a large architectural and engineering firm which has offices in several states and which has done business with D.O.R. before you joined the firm 6 months ago. The firm anticipates doing business with D.O.R. in the future, and you wish to know whether your employment by that firm prohibits you from serving on the advisory council.

The Department of Offender Rehabilitation plans and administers its programs of correctional services through five service regions. There is an advisory council for each region, composed of representatives of the criminal justice system and four citizen representatives, all appointed by the Governor. Section 20.315, F. S. 1975. Each council is advisory in nature and communicates the ideas of the community and the local criminal justice system to the regional administration of D.O.R. pursuant to s. 20.315(10)(b). The duties and responsibilities of each council include: Recommending to the regional director modifications in state program policy; providing a forum for receiving citizen complaints and holding hearings on general problems relating to the department; and providing advice on program coordination within the region. You have further advised that these duties may include recommendations as to capital improvements within the region served by the council.

The Code of Ethics for Public Officers and Employees provides 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 . . . ; 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.]

The first clause of this provision prohibits a public officer from having an employment or contractual relationship with a business entity which is doing business with his agency. The term "agency" is defined to mean

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university. [Section 112.312(2), F. S. 1975.]

We are of the view that the legislative intent of this definition was to define an officer's "agency," for purposes of the Code of Ethics, as the lowest departmental unit within which his influence might reasonably be considered to extend. Therefore, although D.O.R. is not structured by bureaus and divisions, as are nearly all executive departments, we consider your "agency" to be the Region V administration of D.O.R., rather than the entire department.

Under this construction, s. 112.313(7)(a), quoted above, prohibits you from being employed with a firm which is doing business with the Region V administration. As the firm which employs you is not doing business (presently) with the regional administration or with D.O.R., we find that the first clause of s. 112.313(7)(a) does not apply to you. Moreover, according to information provided our staff by the Office of Legal Counsel for D.O.R., all bidding and contracting for capital projects is done through the department's Office of Management and Budget rather than through the regional administrations; consequently, the firm which you serve as a consultant never will do business with your agency, the Region V administration. Therefore, should the architectural firm do business with D.O.R. in the future, you will not be prohibited from serving on the regional advisory council by the first clause of s. 112.313(7)(a).

Nor do we feel that your acting as consultant to an architectural firm while serving on a regional advisory council would be prohibited by the second clause of s. 112.313(7)(a), above, which prohibits a public officer's having an employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and his public duties. Although a regional advisory council might consider the need for additional facilities or proposed sites for such facilities within the region, s. 20.315(10)(b), above, indicates that the duties of an advisory council lie primarily in the areas of program policy and coordination rather than capital improvements. As this is the case, we do not perceive a frequently recurring conflict arising from your service on the council and your employment with an architectural and engineering firm which may do business with D.O.R. in the future.

However, should the council consider a project on which the architectural and engineering firm is likely to be engaged, we suggest that you follow the provision of s. 112.3143, F. S. 1975, which would require you to file a Memorandum of Voting Conflict if you were to participate in the consideration of that project.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit you from serving as a member of the Region V Advisory Council to the Department of Offender Rehabilitation while you are acting as a consultant to an architectural and engineering firm which may do business with the department in the future.