CEO 79-45 -- July 19, 1979

CONFLICT OF INTEREST

FLORIDA PUBLIC LAND SURVEY ADVISORY BOARD PARTICIPATING IN SELECTION OF SURVEYING FIRMS BY DEPARTMENT OF NATURAL RESOURCES

To: George M. Cole, Chief, Bureau of Coastal and Land Boundaries, Department of Natural Resources, Tallahassee

Prepared by: Phil Claypool

SUMMARY:

The Code of Ethics for Public Officers and Employees contains no provision which would govern the extent to which members of the Florida Public Land Survey Advisory Board, who include surveyors in private practice, may participate in the selection of surveying firms by the Department of Natural Resources. Section 112.313(6), F. S. 1977, generally provides that a public officer is prohibited from corruptly using his public position for private gain, but, aside from that limitation, it appears that the board is authorized to participate in the selection process to the extent permitted by the department. If members of the board feel uncomfortable with the latitude granted them in the selection process, it is suggested that the department and board together establish limits to the extent of participation to obviate the potential for conflicts of interest which board members have perceived.

QUESTION:

Would a prohibited conflict of interest be created were the Florida Public Land Survey Advisory Board, the members of which include surveyors in private practice, to participate in the selection of surveying firms by the Department of Natural Resources?

Your question is answered in the negative.

In your letter of inquiry you advise that the Florida Public Land Survey Advisory Board is composed of five registered surveyors appointed annually by the Governor and Cabinet acting as the head of the Department of Natural Resources. Under Rule 16C-11.06, F.A.C., the board consists of at least three surveyors engaged in private practice or employed by private industry. Among other functions, the board is charged with the responsibility of assisting "the department in formulating policies, in adopting rules and regulations, and in selecting qualified professional surveying personnel." Section 177.505, F. S. 1977. You further advise that the Department of Natural Resources contracts with various surveying firms for the implementation of its restoration of public land survey program. Thus, the question has arisen as to what extent the board, which is composed of a majority of persons in private practice, should participate in the selection of surveying firms by the department, many of which firms compete with board members on other projects. Specifically, the board questions whether it would be unethical for it actually to make recommendations as to the best firms from a list of firms applying for particular projects or to make recommendations as to the criteria by which the department selects firms.

By law, the board is authorized, in very general terms, to assist the department in the selection process; presumably, the board's authority could go to the extent of recommending one surveying firm or, at the other extreme, to the extent only of recommending general criteria for the selection of one firm from those applying. The extent of the board's participation in the selection process would seem to be left to the discretion of the department.

The Code of Ethics for Public Officers and Employees contains no provision which would govern the extent of the board's participation, although it generally provides:

MISUSE OF PUBLIC POSITION. -- No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), F. S. 1977.]

For purposes of this provision, the term "corruptly" is defined to mean

. . . done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(7), F. S. 1977.]

Therefore, a member of the Public Land Survey Advisory Board is prohibited from corruptly using his position for private gain. Aside from that limitation, it appears that the board is authorized to participate in the selection process to the extent permitted by the department. If members of the board feel uncomfortable with whatever latitude is granted to them in the selection process, we offer the suggestion that the department and the board together establish limits to the extent of participation of the board in the selection process in order to obviate the potential for conflicts of interest which the board members have perceived.

Accordingly, we find that no prohibited conflict of interest would be created were the Florida Public Land Survey Advisory Board to participate in the selection of surveying firms by the Department of Natural Resources to the extent allowed under s. 177.505, F. S.