CEO 80-45 -- June 18, 1980

CONFLICT OF INTEREST

DEPARTMENT OF NATURAL RESOURCES EMPLOYEE ACTIVELY PARTICIPATING IN NONPROFIT CORPORATION, SOME MEMBERS OF WHICH ARE REGULATED BY THE DEPARTMENT

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(7)(a), F. S., prohibits a public employee from being employed by, or having a contractual relationship with, a business entity which is subject to the regulation of his agency; it also prohibits a public employee from having 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. This provision is not violated when an employee of the Bureau of Aquatic Plant Research and Control of the Department of Natural Resources is a director of, and editor of a magazine published by, a nonprofit corporation composed of private, commercial, and public agency personnel engaged in aquatic plant control, as it does not appear that the state employee is either employed by or has a contractual relationship with the nonprofit corporation.

However, the close private relationship between one in a regulatory position and those persons and businesses regulated presents at least the appearance of such a conflict of interest, in derogation of the legislative intent expressed in s. 112.311(1) of the Code of Ethics. Additionally, attention is directed to s. 112.313(6), F. S., relating to misuse of public position.

QUESTION:

Does a prohibited conflict of interest exist when an employee of the Bureau of Aquatic Plant Research and Control of the Department of Natural Resources is a director of, and editor of a magazine published by, a nonprofit corporation composed of private, commercial, and public agency personnel engaged in aquatic plant control?

Your question is answered in the negative.

In your letter of inquiry and in subsequent correspondence you advise that ____ is a biologist supervisor II in the Control Section of the Aquatic Plant Research and Control Bureau. In this position, he directs and supervises the activities of the state aquatic plant control funding programs, which include approximately 76 agencies in a $2,200,000 program. In addition, he directs and supervises the activities of the department's contract with the U.S. Army Corps of Engineers for the control of aquatic plants; in this $3,200,000 program the department has 14 subcontractors. You further advise that the Bureau of Aquatic Plant Research and Control exercises the department's statutory responsibilities under the Florida Aquatic Weed Control Act and the Florida Nonindigenous Aquatic Plant Control Act (ss. 372.925 and 372.932, F. S.). Under these acts the department has been granted the authority to supervise and direct the control, eradication, and regulation of noxious aquatic weeds and nonindigenous aquatic plants.

You further advise that the subject employee is a director of, and editor of a magazine published by, a nonprofit corporation which has been created in order to provide a common forum for the discussion and exchange of information regarding aquatic plant control and to assist all aquatic plant managers, including private, commercial, and public agency personnel, in all aspects of their profession. As you have advised, many members of the organization are regulated in some way by the Department of Natural Resources through its Bureau of Aquatic Plant Research and Control. In addition, in a telephone conversation with our staff, you advised that the subject employee receives no compensation from his voluntary membership in and service with this nonprofit organization.

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

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- 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.]

The provision prohibits a public employee from being employed by or having a contractual relationship with a business entity which is subject to the regulation of his agency; it also prohibits a public employee from having 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. However, under the circumstances you have presented, it does not appear that the subject employee is employed by or has a contractual relationship with the nonprofit corporation. As we have advised in previous opinions, noncompensated service on the board of directors of a nonprofit corporation does not constitute an employment or a contractual relationship. See CEO's 77-16 and 78-98.

In essence, the Code of Ethics is directed more toward prohibiting conflicts of interest arising from private economic considerations than toward prohibiting other situations arising from a public officer's or employee's private, nonprofit activities which also may present conflicts of interest. In our view, the close private relationship here between one in a regulatory position and those persons and businesses regulated presents at least the appearance of such a conflict of interest. As the Legislature has observed, it is essential to the proper conduct and operation of government that public officials be independent and impartial. Section 112.311(1), F. S. Such independence and impartiality may not exist when one is active in an organization which includes members regulated by one's public agency.

In addition, we call your attention to the following provision of the Code of Ethics:

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.]

We caution you that the use of departmental mailing facilities by a public employee for private activities could violate this provision and certainly presents the appearance of a violation.

Accordingly, we find that no prohibited conflict of interest exists under the Code of Ethics for Public Officers and Employees when an employee of the Bureau of Aquatic Plant Research and Control is a director of, and editor of a magazine published by, a nonprofit corporation composed of private, commercial, and public agency personnel engaged in aquatic plant control. Our authority in rendering advisory opinions is limited to interpretations of the Code of Ethics; thus, there may be departmental restrictions or regulations which could bear on the subject employee's situation and which we are unable to address in this opinion.