CEO 80-21 -- March 20, 1980

CONFLICT OF INTEREST; FINANCIAL DISCLOSURE

EMPLOYEE OF OFFICE OF STATE COURTS ADMINISTRATOR CONSULTING WITH ORGANIZATIONS WHICH OFFICE CANNOT ASSIST

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(8), F. S., clearly was intended to prevent a public officer or employee from taking unfair advantage of his public position in order to benefit himself or others through the use of information gained by virtue of his position. This provision, as well as s. 112.313(6), relating to misuse of public position, would be violated were an employee of the State Courts Administrator's office to offer his services as a consultant to organizations whose requests for assistance have been denied by that office. It is noted that the information sought from the employee has been gained by reason of his 2 years of research, preparation, and experience while an employee of the office, thus distinguishing this situation from those addressed in CEO's 77-41, 77-107, 78-81, and 79-30, in which it was found that the knowledge and expertise at issue were acquired by previous educational or work experience.

An examination of the position description and responsibilities of the subject employee of the State Courts Administrator's office indicates that he does not meet the definition of a "specified employee" subject to financial disclosure unless, in addition to his regular duties, he accepts compensation which in the aggregate exceeds $250 for consultations with other state agencies or with other government or business entities. See s. 112.3145(1)(b), F. S.

QUESTIONS:

1. Would a prohibited conflict of interest be created were I, an employee of the office of the State Courts Administrator, to offer my services as a consultant to organizations whose requests for assistance have been denied by the office?

2. Am I, an employee of the office of the State Courts Administrator, a "specified employee" subject to the requirement of filing financial disclosure annually?

Question 1 is answered in the affirmative.

In your letter of inquiry you advise that presently you are a full-time state employee of the office of the State Courts Administrator, where your primary responsibility over the past 2 years has been to direct a statewide project on dispute resolution alternatives. During this time, you advise, you have developed substantial expertise in this area of judicial concern, so that very few individuals in the country have acquired the experience you have acquired, particularly as it relates to program operations and training.

In addition, you advise that your office has received a number of requests from out of state for technical assistance, which requests cannot be met by the office of the State Courts Administrator. The office also receives requests from individuals within the state for assistance which, for specific reasons, cannot be accepted. Because of the experience you have gained, you would like to offer your services to such organizations or individuals independently of the office, with the proviso that the services would not be rendered during regular working hours.

In a telephone conversation with our staff, you advised that the office of the State Courts Administrator functions in a support capacity to the Chief Justice of the Florida Supreme Court, who is charged with the constitutional responsibilities of chief administrative officer of the judicial system. Section 2(b), Art. V, State Const. As part of this function, you were assigned the responsibility of researching and analyzing alternatives in dispute resolution. During the course of this work, you researched the area and prepared a manual on how to set up a citizen dispute settlement program. As a result of the court's work in this area, the office of the State Courts Administrator receives numerous requests for assistance from out of state which it declines to meet. The office does try to meet requests from within the state which would require only short-term (less than 10 days) assistance. Thus, the office has honored requests from cities, counties, and judicial circuits for 1 or 2 days of assistance in creating a citizen dispute settlement program. As part of this assistance, you are required to travel to the area to advise interested persons on how to set up both this program and staff training programs. Finally, you advised that it is the State Courts Administrator who makes the final decision as to whether the office will provide assistance in these matters.

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

DISCLOSURE OR USE OF CERTAIN INFORMATION. -- No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), F. S.]

It is apparent that this provision was intended to prevent a public officer or employee from taking unfair advantage of his position in order to benefit himself or others through the use of information gained by virtue of his public position.

The above-quoted provision prohibits a public employee from disclosing or using certain "information." That term generally is defined to include "knowledge obtained from investigation, study, or instruction," as well as facts and data. Webster's New Collegiate Dictionary (1975). In contrast, "expertise" has been defined in Webster's as "skill in a particular field, know-how." From your description of the consulting work you propose to undertake, it appears that not only would you be using your expertise, or skill, in the area of citizen dispute settlement programs, but also you would be using the information you have gained from your research and preparation in the area. Clearly, this information would be used for your personal gain or benefit as a private consultant.

This information, you admit, has been gained by reason of your 2 years of research, preparation, and experience while an employee of the office of the State Courts Administrator. Thus, your situation differs from those in CEO's 77-41, 77-107, 78-81, and 79-30, in which we found that the knowledge and expertise at issue were acquired by previous educational or work experience.

The remaining question is whether the information you will be imparting as a consultant is "not available to members of the general public." In this respect we note that not all requests for assistance regarding dispute alternatives from the office of the State Courts Administrator can be met. The office has assisted no one from out of state and has refused a few requests from within the state. This results in a demand which you propose to fill by privately offering your services. However, the fact that there is such a demand indicates that the information and assistance which you would provide is not made available to the general public.

The Code of Ethics also 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.]

This provision prohibits the use of one's public position, materials developed in one's position, or the work product of one's agency to benefit one's private work. In addition, we doubt whether this provision or s. 112.313(8) would permit a public employee to use his position to obtain information from his agency as to which persons need assistance, which, in turn, could be supplied by private consultations. See CEO 79-47. Moreover, we feel that the consultation you propose would result in the appearance of a misuse of your public position. For example, we envision a situation in which an organization or individual requests assistance from the State Courts Administrator, is denied that assistance, and later is contacted privately by an employee of that office who offers to provide the requested services.

For the foregoing reasons, we find that a prohibited conflict of interest would be created were you to offer your services as a consultant to organizations whose requests for assistance have been denied by the office of the State Courts Administrator while you are employed by that office.

As to question 2, the Code of Ethics for Public Officers and Employees provides that each "specified employee" shall file a statement of financial interests annually. Section 112.3145(2)(b), F. S. We have examined your position and responsibilities as set out in your first question in light of the definition of "specified employee" contained in s. 112.3145(1)(b). Accordingly, we find that you would fall within that definition only if, in addition to your regular duties, you accept compensation which in the aggregate exceeds $250 for consultations with other state agencies or with other government or business entities.