CEO 80-44 -- June 18, 1980

CONFLICT OF INTEREST

CONTRACT EMPLOYEE OF COUNTY AUTHORITY SUBSEQUENTLY BEING EMPLOYED BY COMPANY CONTRACTING WITH AUTHORITY

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

Prepared by: Phil Claypool

SUMMARY:

No prohibited conflict of interest was created when a data processing specialist employed under a contract with a county authority subsequently was employed by a private company to perform data processing work under a contract between the company and the authority. Although s. 112.313(7)(a), F. S., prohibits a public employee from being employed by a business entity which is doing business with his agency, it does not appear that the data processing specialist was employed by the company at the time he was a public employee, but rather at a time after he had left his public employment. Nor does it appear that any other provision of the Code of Ethics would apply to the situation.

QUESTION:

Was a prohibited conflict of interest created when a data processing specialist employed under a contract with a county authority subsequently was employed by a private company to perform data processing work under a contract between the company and the authority?

Your question is answered in the negative.

In your letter of inquiry you advise that ____ was a contract employee retained by the Miami-Dade Water and Sewer Authority, an agency of Metropolitan Dade County. Under that contract, ____ was to perform certain data processing duties for the authority. You further advise that, during the course of that contract, ____ agreed to work for a company which was bidding on a data processing contract with the authority in response to specifications submitted by the authority for public bidding in a sealed, competitive bid process. You also advise that the company was awarded the data processing contract by the authority, with the subject contract employee's services being terminated 1-1/2 months prior to the beginning of that contract.

In a telephone conversation with our staff, you advised that before ____ contracted with the authority, all of the authority's data processing work was performed under a contract with a data processing firm. ____ was hired by the authority in order to set up an "in-house" data processing system for the authority, but he had only completed certain economic studies about the new system when the authority decided against an "in-house" system as being too expensive. Thus, his responsibilities under his contract with the authority were not completed before bids were submitted and the contract for all data processing services was awarded to the company which employed him. In addition, you advised, the specifications for the last contract were prepared by another authority employee based upon the authority's previous data processing contracts.

In previous opinions we have advised that the Code of Ethics for Public Officers and Employees does not apply to persons who are "independent contractors" with governmental agencies rather than "public employees." See CEO's 78-65, 79-24, and 79-27. Our review of the terms of the contract between the authority and the subject data processing specialist indicates that the specialist may have been an employee of the authority rather than an independent contractor. However, we need not resolve this particular issue conclusively since we find that, even if he were to have been a public employee, no prohibited conflict of interest was created by virtue of his relationship with the company bidding to perform work for the authority.

Section 112.313(7)(a), F. S., prohibits a public employee from being employed by a business entity which is doing business with his agency. However, in the instant situation, it does not appear that the data processing specialist was employed by the bidding company at the time he was a "public employee," but rather at a time after he had left his "public employment." Therefore, s. 112.313(7)(a) would not apply. Nor does it appear that any other provision of the Code of Ethics for Public Officers and Employees would apply.

Accordingly, we find that no prohibited conflict of interest was created when a contract employee of a county authority subsequently was employed by a private company to perform work for the authority pursuant to a contract between the company and the authority. Please be advised that we have no jurisdiction to render an advisory opinion concerning any provision of a county code.