CEO 80-83 -- October 30, 1980

CONFLICT OF INTEREST

DIRECTOR OF COUNTY CETA DEPARTMENT PRIVATELY CONSULTING WITH CETA AGENCIES OUTSIDE THE COUNTY

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

Prepared by: Phil Claypool

SUMMARY:

No prohibited conflict of interest would be created were the director of a county CETA department to offer training and consultative services to CETA operators and prime sponsors outside of the county and to service providers which are outside the county and which are not contracting with the county CETA department. Although a public employee is prohibited, under s. 112.313(7)(a), F. S., from being employed by, or having a contractual relationship with, any business entity or agency which is doing business with or is subject to the regulation of his public agency, none of the prime sponsors or service providers are so situated. Because CETA funds are allocated at a national level to each jurisdiction so that there is no competition for funds except among service providers within a given jurisdiction, the proposed consultations would not create a continuing or frequently recurring conflict, or a conflict which would impede the full and faithful discharge of public duties, in further violation of s. 112.313(7)(a). Neither would s. 112.313(8) of the Code of Ethics, relating to the disclosure or use of privileged information for private gain, be violated inasmuch as it appears that the petitioner's expertise in CETA matters was gained through previous work experience rather than through his current public employment. See CEO 80-21 for a more detailed discussion of this provision of the code.

QUESTION:

Would a prohibited conflict of interest be created were I, the Director of the Lake County CETA Department, to offer training and consultative services to CETA operators and prime sponsors outside of Lake County and to service providers which are outside of Lake County and which are not contracting with the Lake County CETA Department?

Your question is answered in the negative.

In your letter of inquiry you advise that you are the Director of the Lake County CETA Department, Lake County being designated as a comprehensive operator and program agent for the balance of the State of Florida in the administration of the federal Comprehensive Employment and Training Act (CETA). You also advise that your experience with employment and training programs over the past 10 years has provided you with extensive insight and expertise in operational and administrative areas; as a result, you are forming a corporation to offer training and consultant services to CETA operators, prime sponsors, and service providers both within and outside of Florida. You further advise that you do not intend to offer or provide services to Lake County or any Lake County CETA service providers and that you will not conduct any business during normal working hours, except for those hours during which you are on authorized leave.

In a telephone conversation with our staff, you advised that the U.S. Department of Labor administers the CETA program and allocates and distributes CETA funds nationwide through regional offices, with funding for individual areas (jurisdictions) being allocated according to a formula which takes into account the population of the jurisdiction. If the population of a jurisdiction is 100,000 or more, the unit of general purpose government for that jurisdiction is designated a prime sponsor and receives its CETA funding and review directly from a regional office of the U.S. Department of Labor. The remaining jurisdictions in Florida are classified together as the "balance of the state"; for these areas the Governor serves as the state prime sponsor through the Florida Department of Labor and Employment Security, which receives allocated CETA funding and review from the appropriate regional office of the U.S. Department of Labor.

Lake County has been designated by the Florida Department of Labor and Employment Security as a comprehensive operator and program agent for the distribution of funds allocated to the jurisdiction of Lake County, you advised. Thus, the Lake County CETA Department develops an annual proposal for the use of CETA funds based upon priorities set by the county commission from applications made by local agencies (service providers) within the county. The proposal is reviewed by the state under state guidelines and, after approval, contracts are developed by the county with service providers according to the priorities in the proposal. As director of the county CETA department, you advised, you are responsible for providing administrative support and advice to the county commission regarding its responsibilities as a comprehensive operator. In addition, you advised that you have held the position of director for about 1 year and that your expertise in CETA programs was derived from previous employment with another county in Florida which was designated a prime sponsor, as well as with the State of Michigan.

The Code of Ethics for Public Officers and Employees provides:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), F. S.]

This provision prohibits you from privately offering consultative services to Lake County or to any agency of the county. However, as you have advised that you will not do so, we find that this provision does not prohibit your contemplated outside employment.

The Code of Ethics also provides:

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 first portion of this provision prohibits you from being employed by, or having a contractual relationship with, any business entity or agency which is doing business with or which is subject to the regulation of your agency. Because of the structure of the CETA program, it does not appear that any prime sponsor or CETA operator outside of Lake County, or any service provider which is outside of Lake County and which is not contracting with your department, is or will be doing business with or subject to the regulation of the Lake County CETA Department. The second portion of s. 112.313(7)(a) prohibits a public employee from having any employment or contractual relationship that will create a continuing or frequently recurring conflict with his public duties or that will impede the full and faithful discharge of those duties. Because CETA funds are allocated at a national level to each jurisdiction, including Lake County, so that there is no competition for funds except among service providers within a given jurisdiction, we find that no continuing or frequently recurring conflict of interest would be created by your proposed consultations; nor would those consultations impede the full and faithful discharge of your public duties.

Finally, the Code of Ethics provides:

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.]

In a previous advisory opinion, CEO 80-21, we advised that this provision would apply to the use of information gained by reason of one's present public position, as opposed to knowledge and expertise acquired by previous educational or work experience. As it appears that your expertise in CETA matters was gained through previous work experience, we find that s. 112.313(8) does not apply under the circumstances you have presented.

Accordingly, we find that no prohibited conflict of interest would be created were you to offer training and consultative services to CETA operators and prime sponsors outside of Lake County and to service providers which are outside of Lake County and which are not contracting with the Lake County CETA Department. As a cautionary note, we point out that, as we advised in CEO 80-21, s. 112.313(6), F. S., would prohibit 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.