CEO 77-144 -- September 22, 1977

CONFLICT OF INTEREST

MEMBER OF BASIN BOARD EMPLOYED BY COMPANY WHICH HAS CONSUMPTIVE USE PERMIT FROM WATER MANAGEMENT DISTRICT

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

Prepared by: Phil Claypool

SUMMARY:

No prohibited conflict of interest exists where a member of a basin board is employed by a company which has obtained a consumptive use permit from the governing board of the water management district within which the basin board lies. Section 112.313(7)(a), F. S., prohibits a public officer from being employed by a business entity which is subject to the regulation of his agency, and the term "agency" is defined by s. 112.312(2) to include any department, division, bureau, commission, or authority of a regional governmental entity of the state. The basin board therefore constitutes an agency separate and distinct from the water management district, which is the regulatory body under the subject circumstances.

QUESTION:

Does a prohibited conflict of interest exist where I, a member of the Withlacoochee River Basin Board, am employed by a company which has obtained a consumptive use permit from the Southwest Florida Water Management District?

Your question is answered in the negative.

In your letter of inquiry you advise that you are a recent appointee to the Withlacoochee River Basin Board, which has been established by the governing board of the Southwest Florida Water Management District (SWFWMD). You also advise that you have been employed since 1975 as manager of environmental control of a citrus processing company and that the company presently has a consumptive use permit from SWFWMD which will expire in 1980.

The responsibilities of a basin board are set out in s. 373.0695(1), F. S. 1975, and include:

(a) The preparation of engineering plans for the development of the water resources of the basin and the conduct of public hearings on such plans.

(b) The development and preparation of overall basin plan of secondary water control facilities for the guidance of subdrainage districts and private land owners in the development of their respective systems of water control which will be connected to the primary works of the basin to complement the engineering plan of primary works for the basin.

(c) The preparation of the annual budget for the basin and the submission of such budget to the governing board of the district for inclusion in the district budget.

(d) The consideration and prior approval of final construction plans of the district for works to be constructed in the basin.

(e) The administration of the affairs of the basin.

(f) Planning for and, upon request by a county, municipality, or regional water supply authority, providing water supply and transmission facilities for the purpose of assisting such counties, municipalities, and regional water supply authorities within or serving the basin.

Also, each basin board approves any tax levy which may be imposed within its geographic area by the governing board of SWFWMD to finance basin functions. Section 373.0697, F. S. (1976 Supp.). Mr. L. M. Blain, Counsel for SWFWMD, confirmed to our staff in a telephone conversation that the basin boards have no direct role in the issuance of consumptive use permits, although hearings on permit requests are occasionally held in conjunction with a basin board meeting, in which case the basin board might act in an informal, advisory capacity.

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 officer from being employed with a business entity which is subject to the regulation of his agency and also prohibits a public officer from holding any employment that will create a frequently recurring conflict between his private interests and the performance of his public duties.

The term "agency" is defined to include any department, division, bureau, commission, or authority of a regional governmental entity of the state. Section 112.312(2), F. S. 1975. In light of this definition and the independent powers which may be exercised by a basin board under s. 373.0695(1), above, we are of the opinion that the Withlacoochee River Basin Board constitutes an agency separate and distinct from SWFWMD. Inasmuch as the basin board has no official function in the consumptive use permit process, we find that the company which employs you is not subject to the regulation of your agency by virtue of its holding or applying for a consumptive use permit. Nor do we perceive that your position with the company would create a frequently recurring conflict between your private interests and the performance of your duties as a member of the basin board, based on the facts currently before us.

Accordingly, we find that no prohibited conflict exists where you, a member of the Withlacoochee River Basin Board, are employed by a company which has obtained a consumptive use permit from the Southwest Florida Water Management District.