CEO 77-82 -- June 17, 1977
CONFLICT OF INTEREST
EMPLOYEE OF DEPARTMENT OF ENVIRONMENTAL REGULATION LEASING LAND FROM REGULATED COMPANIES; EMPLOYEE OF DEPARTMENT OWNING CORPORATION HOLDING PATENT FOR DEVICE USED IN WASTE TREATMENT FACILITIES
To: (Name withheld at the person's request.)
SUMMARY:
The Code of Ethics for Public Officers and Employees prohibits a public employee from having a contractual relationship with a business entity which is subject to the regulation of his agency or which creates a frequently recurring conflict between private interest and public duty. Section 112.313(7)(a) F. S. 1975. Accordingly, a prohibited conflict exists where an employee of the Division of Environmental Permitting, Department of Environmental Regulation leases land from two phosphate companies regulated by the division, the employee's agency pursuant to s. 112.312(2), F. S. (1976 Supp.).
No prohibited conflict is created, however, where a Department of Environmental Regulation employee owns a material interest in a corporation which holds a patent for a device designed for use in waste treatment facilities which are regulated by the department, as the employee does not have a contractual relationship with a waste treatment facility regulated by his agency. Neither is he deemed to have a contractual relationship which would create a frequently recurring conflict with his public duties, as he is not in a position to supervise, regulate, approve, or give advice or recommendations regarding the use of the patented device by waste treatment facilities.
QUESTIONS:
1. Does a prohibited conflict of interest exist where a Department of Environmental Regulation branch office manager leases land from two phosphate companies for grazing cattle in connection with his private cattle-raising business?
2. Does a prohibited conflict of interest exist where a Department of Environmental Regulation employee owns a material interest in a corporation which holds a patent for a device designed for use in waste treatment facilities which are regulated by the department?
Question 1 is answered in the affirmative.
According to your letter of inquiry and subsequent information provided by your office, Mr. John Barnett is employed as a Professional Engineer III with the Department of Environmental Regulation (D.E.R.) and holds the position of manager of the department's Southwest District branch office. He also leases land from two phosphate companies for grazing cattle in connection with his private cattle-raising business.
The subject employee is in the Division of Environmental Permitting, which processes construction and operation permit applications under Ch. 403, F. S., as they relate to the phosphate industry. In his position as branch office manager, his duties, as specified in his position description, include:
1. Providing technical input into sampling programs and studies pertaining to phosphate mining operations on a statewide basis,
2. Preparing technical reports and making recommendations for the best regulatory approach for correcting pollution problems of phosphate mining operations on a statewide basis, and
3. Planning, organizing and supervising permitting and enforcement activities within the branch office.
In addition, the subject employee serves also as local technical consultant to the D.E.R. Bureau of Enforcement in all matters involving the phosphate industry of Florida.
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 . . . ; 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.
The subject employee's agency is the Division of Environmental Permitting, pursuant to the definition of "agency" contained in s. 112.312(2), F. S. 1975. We have previously determined that a lease constitutes a "contractual relationship" for purposes of the above- quoted provision. See CEO 77-13. As both phosphate companies from which the subject employee is leasing land clearly are subject to the regulation of the Division of Environmental Permitting, we find that the Code of Ethics prohibits the subject D.E.R. branch office manager from leasing land from two phosphate companies for grazing cattle in connection with his private cattle-raising business.
We note that the subject employee holds that the leases were entered into either before he was employed by D.E.R. or while he was employed in another area and therefore not dealing directly with the phosphate companies. However, we do not feel that these circumstances are material in view of his present regulatory responsibilities and in light of the legislative intent which may be inferred from the fact that s. 112.313(7), above, does not contain any exemption for contracts entered into prior to public employment, as does s. 112.313(3), F. S. 1975.
Question 2 is answered in the negative.
According to information you have provided us, Mr. Otis Smith is employed as a Pollution Control Specialist II in the Southwest District branch office of the Department of Environmental Regulation (D.E.R.). This employee owns 40 percent of the stock of a corporation which holds a patent for a timing device designed for use in waste treatment facilities. That corporation does not market or manufacture the device, as these functions are undertaken by two separate companies over which the subject employee has no control. The device reportedly is a power-saving control which is not required by state statute or rule, but which can adjust power consumption in order to minimize utilities expenses. You also have stated that waste treatment facilities are regulated by D.E.R. pursuant to Ch. 403, F. S., and, although the subject employee is not involved in department permitting functions relating to waste treatment facilities, he does participate occasionally in enforcement of waste treatment regulations because he serves as the enforcement officer for the branch office.
Section 112.313(7)(a), quoted in question 1 above, provides that a public employee may not have a contractual relationship with a business entity which is subject to the regulation of his agency or that will create a frequently recurring conflict between his private interests and the performance of his public duties. It is apparent that the subject employee does not have a contractual relationship with a waste treatment facility. Nor do we perceive that he has a contractual relationship that would create a frequently recurring conflict, inasmuch as his public duties do not put him in a position to supervise, regulate, approve, or give advice or recommendations regarding the use of the patented device by waste treatment facilities.
Accordingly, we find that no prohibited conflict of interest exists in the subject employee's ownership of a material interest in a corporation which holds a patent for a device designed for use in waste treatment facilities.