CEO 79-27 -- April 18, 1979

CODE OF ETHICS

APPLICABILITY TO PRIVATE ENGINEERING FIRM EMPLOYED ON PART-TIME RETAINER BASIS TO ACT AS COUNTY ENGINEER

To: Robert Bruce Snow, Hernando County Attorney, Brooksville

Prepared by: Phil Claypool

SUMMARY:

Reference is made to CEO 78-65, in which it was found that the Code of Ethics for Public Officers and Employees does not apply to persons who are "independent contractors" rather than "employees" of a governmental agency. Pursuant to the rationale expressed therein, members of an engineering firm which has been retained by a county to act as county engineer are not deemed to constitute public employees subject to the Code of Ethics inasmuch as the firm is retained on a part-time basis; is paid a monthly lump sum by the county, with no deductions or withholding amounts taken from this payment; performs the work on the firm's premises; and is not subject to control by the county relative to the details of work performed.

QUESTION:

Are any members of an engineering firm which has been retained by Hernando County to act as county engineer public employees subject to the standards of conduct contained in the Code of Ethics for Public Officers and Employees, when the firm has been employed on a part-time retainer basis by the county?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advise that the Hernando County Board of County Commissioners has employed on a part-time retainer basis a private engineering firm to act as county engineer. You also advise that this engineering firm, which is composed of five engineers and additional staff, is paid a monthly lump sum by the county, with no deductions or withholding amounts taken from this payment. If the firm does work for the county which is outside the scope of the retainer agreement, the firm is paid at an hourly rate. The firm provides engineering services for employers other than the county and, it is anticipated, will from time to time represent private developers within the county on engineering matters, subject to the caveat that the private developers will be advised of the firm's representation of the county.

Work performed for the county is done on the firm's premises, with the firm having the right to delegate responsibility. In addition, the county exercises no control over the details of work performed and relies on the professional judgment of the firm's engineers.

In CEO 78-65 we advised that the Code of Ethics for Public Officers and Employees does not apply to persons who are "independent contractors" rather than "employees" of a governmental agency. The tests for making this determination also are set forth in that opinion, and our examination of the facts you have presented in light of those tests convinces us that members of the engineering firm which has been retained by the county to act as county engineer are independent contractors with the county, as opposed to county employees.

Accordingly, we find that members of the engineering firm which has been retained as Hernando County Engineer are not subject to the standards of conduct provisions of the Code of Ethics for Public Officers and Employees.