CEO 81-15 -- February 26, 1981

CONFLICT OF INTEREST

CITY FIRE MARSHAL CONTRACTING TO WORK FOR BUILDERS DOING WORK WITHIN CITY

To: Wayne Bowers, City Manager, Jacksonville Beach

SUMMARY:

A public officer or employee is prohibited from having a contractual relationship with a business entity which is subject to the regulation of his agency. Section 112.313(7)(a), F. S. When building contractors are subject to the regulation of a municipal fire department under the department's authority to inspect and determine compliance with the city's fire prevention code, a fire marshal in that department is prohibited from contracting with such building contractors to perform work during off- duty hours.

QUESTION:

Would a prohibited conflict of interest be created were a city fire marshal to contract to perform work outside the city with building contractors engaged in building within the city?

Your question is answered in the affirmative.

In your letter of inquiry and in a telephone conversation with our staff you have advised that Mr. Gerald E. Lute recently was appointed to the position of Fire Marshal in the City of Jacksonville Beach Fire Department. In this capacity, you advise, he works full- time enforcing the Fire Prevention Code of the City, as well as other related City codes. Among other duties, he is responsible for inspecting new construction and determining compliance with the Fire Prevention Code.

You also advise that, prior to his appointment, the subject Fire Marshal worked part-time during off-duty hours in the building trades industry outside the jurisdiction of the City Fire Department as a job supervisor. Therefore, you question whether the subject Fire Marshal may continue to engage in such work during his off-duty hours.

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.]

This provision prohibits a public officer or employee from having a contractual relationship with a business entity, such as a building contractor, which is subject to the regulation of his agency. Clearly, the subject Fire Marshal would have a contractual relationship with any building contractor for whom he is working. Therefore, the subject Fire Marshal would be prohibited from working for a building contractor who is subject to the regulation of the City Fire Department under the Department's authority to inspect and determine compliance with the Fire Prevention Code.

We are of the opinion that a building contractor is not "subject to the regulation of" the Fire Department merely by virtue of the fact that the contractor has been in the past, or may be at some time in the future, engaged in building within the City. It is not until the jurisdiction of the Fire Department has been invoked, for example, through a request for a building permit, that the Department has any regulatory authority over a contractor. Thus, the subject Fire Marshal is prohibited from contracting to work for a building contractor who, at the time of the contract, is engaged in construction within the City, or who otherwise would be subject to the regulatory authority of the Fire Department at that time. Under this interpretation, no prohibited conflict of interest would exist if the subject Fire Marshal were to inspect the work of a former employer, as he would not have a contractual relationship with that contractor at the time the contractor's work was being regulated by the Fire Department.

Accordingly, we find that a prohibited conflict of interest would be created were the subject City Fire Marshal to contract to perform work outside the City with building contractors engaged in building within the City.