CEO 77-25 -- February 17, 1977

CONFLICT OF INTEREST

PRIVATE SURVEYING FIRM WHICH HAS CONTRACTED WITH BOARD OF COUNTY COMMISSIONERS TO SURVEY FOR THE COUNTY PRESENTING TO BOARD FOR APPROVAL A PLAT PREPARED FOR A PRIVATE DEVELOPER

To: John Wendell, Citrus County Attorney, Inverness

Prepared by: Phil Claypool

SUMMARY:

A private surveying firm which has contracted with a county on an annual basis to do its surveying work is not prohibited by the Code of Ethics from appearing before the board of county commissioners on behalf of a private developer. Although a public officer or employee is prohibited from having a contractual relationship with a business entity subject to the regulation of his public agency, the surveying firm constitutes an independent contractor rather than a public employee and, accordingly, does not fall within the purview of the Code of Ethics for Public Officers and Employees.

QUESTION:

Does a prohibited conflict of interest exist where a private surveying firm which has contracted with a board of county commissioners to survey for the county presents to the board for approval a plat prepared for a private developer?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you have stated that you are the County Attorney for Citrus County and that a private surveying firm, a corporation, has contracted with the county on an annual basis to do its surveying work. The firm is the only such business located in Citrus County which is qualified to do the work required by the county. The surveying work done for the county amounts to about 4 percent of the business done by the firm. The firm also does surveying work for private developers, including the preparation of plats. Plats of land within the county must be approved by the board of county commissioners, although such approval and the filing of the plat with the clerk of the circuit court could be construed as ministerial functions.

The Code of Ethics for Public Officers and Employees provides, in relevant part, as follows:

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 . . . . [Section 112.313(7)(a), F. S. 1975.]

A public officer or employee thus is prohibited from holding employment with a business entity which does business with his public agency. By its own terms, however, the provision applies only to public officers and employees, not to independent contractors.

The definition of an independent contractor generally is stated as: "One who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the product or result of his work." 41 Am. Jur.2d Independent Contractors s. 1, 1968. The two elements which distinguish an independent contractor from an employee are: the contractor has an independent business or occupation, and the contractor is not subject to the control of the employer as to manner or detail of performance of the contracted work. In the instant case, the subject surveying firm clearly constitutes an independent business which is retained by the county to perform surveying services from time to time. Owners and employees of the firm are not county employees and are not subject to the control of the county as to manner or detail of work performed. Rather, they constitute independent contractors and accordingly are not subject to the above-quoted conflicting employment provision of the Code of Ethics.