CEO 77-107 -- July 21, 1977

CONFLICT OF INTEREST

STATE MARINE BIOLOGIST CONSULTING IN AREA OF EXPERTISE

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

Prepared by: Bonnie Johnson

SUMMARY:

Section 112.313(7)(a), F. S. 1975, prohibits a public employee from having a contractual relationship with any business entity or agency which does business with or is regulated by the employee's public agency or which creates a recurring conflict with the employee's public duty. This provision is not deemed to be breached where a marine biologist with the Department of Natural Resources contracts with an oil company or a South American aluminum company as a consultant in areas of his expertise, even where he has conducted similar studies for the state, because his agency, the Division of Marine Resources, neither does business with nor is regulated by either company. Neither is s. 112.313(8), pertaining to the disclosure or use of certain information, deemed to be applicable inasmuch as the biologist brought expertise in the two areas of research with him to his employment by the state. However, s. 112.3145(1)(b)8. requires that any full-time state employee who receives in excess of $250 for consultations during any calendar year is required to file a statement of financial interests on or before July 15 of the following year.

QUESTION:

Would a prohibited conflict of interest be created were I, a marine biologist with the Florida Department of Natural Resources, to serve privately as a consultant on two studies, the subjects of which I have researched in my capacity as a state employee?

Your question is answered in the negative.

You advise in your letter of inquiry and in a telephone conversation with a member of our staff that, as a marine biologist with the Department of Natural Resources (DNR), currently you are engaged in a study of sea turtles, and in the past you have researched spiny lobsters. Recently you have received two proposals to serve as a consultant for marine biological research projects. One proposal, which would be under the direction of the Florida Audubon Society and funded by the Exxon Oil Company, involves the effects of oil spills on small sea turtles. The second proposal is from a Brazilian aluminum production company interested in spiny lobster mariculture. In both instances, you advise, such consulting work would be undertaken while you are on annual leave or outside the regular working hours of your state employment.

Section 112.313(7)(a), F. S. 1975, pertaining to conflicting employment or contractual relationships, provides as follows:

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.

Accordingly, a public employee is prohibited from having a contractual relationship with any business entity or agency which does business with or is regulated by the employee's public agency or which creates a recurring conflict with the employee's public duty.

You have advised that, in the case of the first proposal, your contract would be with the Florida Audubon Society, a nonprofit corporation, rather than with the oil company. The society, as well as the Brazilian company, meets the definition of a "business entity" contained in s. 112.312(3), F. S. (1976 Supp.). Pursuant to the definition of "agency" contained in s. 112.312(2), your agency is the Division of Marine Resources within DNR. However, as that division neither does business with nor regulates either the Brazilian company or the Audubon Society, the first clause of the above-quoted s. 112.313(7)(a) is not applicable to your situation. Nor do we perceive that the proposed consultation would create a recurring conflict with your public duty, based on your assurance that no state time would be utilized.

The Code of Ethics for Public Officers and Employees further provides as follows:

DISCLOSURE OR USE OF CERTAIN INFORMATION. -- No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), F. S. 1975.]

While it could be argued that the expertise gained in your state- sponsored studies of sea turtles and spiny lobsters could be turned to your personal gain through the proposed consultation, we are of the view that both your public position and your qualification to contract for the outside projects derive from prior education and experience. You have advised, in fact, that you began your study of sea turtles in 1956, 7 years prior to being employed by DNR and, further, that you were hired by DNR primarily because of your previous research of and discoveries about spiny lobsters.

We accordingly find that no prohibited conflict of interest under the Code of Ethics for Public Officers and Employees would be created were you to enter into the proposed contracts for consultation services. We would point out, however, that should you engage in such consultation, you potentially will meet the definition of a "specified employee" for purposes of financial disclosure. That term is defined in part to include:

Any full-time state employee who, in addition to his regular duties, accepts compensation which in the aggregate exceeds $250 for consultations with other state agencies or with other government or business entities. [Section 112.3145(1)(b)8., F. S. 1975.]

Therefore, should you receive in excess of $250 for consultation during any calendar year, you are required to file a statement of financial interests, CE Form 1, on or before July 15 of the following year. See s. 112.3145(2)(b), F. S. 1975.