CEO 82-18 -- March 4, 1982

CONFLICT OF INTEREST

DEPARTMENT OF NATURAL RESOURCES BIOLOGIST CONSULTING WITH COUNTY

To: Mr. Edwin A. Joyce, Jr., Director, Division of Marine Resources, Department of Natural Resources

SUMMARY:

A prohibited conflict of interest would be created were a biologist with the Department of Natural Resources Marine Research Laboratory to enter into a consulting contract with a county on a project which the Department has been asked to review. In this instance, the employee would be asked by the Department to review private consulting work resulting in a violation of Section 112.313(7), Florida Statutes. However, if the Department has not been asked to review the project, no prohibited conflict of interest would be created were the subject employee to engage in the proposed consultation. CEO 77-107 is referenced in this regard.

QUESTION:

Would a prohibited conflict of interest be created were a biologist with the Department of Natural Resources Marine Research Laboratory to enter into a consulting contract with a county on a project which may be evaluated by the Department?

In your letter of inquiry you advise that Mr. Mark Moffler is a biologist supervisor with the Department of Natural Resources Marine Research Laboratory in St. Petersburg. In that position, you advise, he is responsible for supervising, conducting, and evaluating research projects in coastal botany, and he has evaluated seagrass restoration techniques and the success of experimental mitigation/restoration projects. You advise that the subject employee has been contacted by the Metropolitan Dade County Public Works Department to submit a proposal for a consulting contract to conduct monitoring of the planting and survival of seagrass in a seagrass mitigation program in Biscayne Bay.

However, you advise that it is possible that the Department may be asked to evaluate the project. In a telephone conversation with our staff, you advised that occasionally the Department of Environmental Regulation asks your Department to review such projects and to comment on them in an advisory capacity; similarly, it is possible that the County might ask the Department to review the project, although the Department would have no regulatory authority over the project. In the event the Department were to become involved, you advised, the subject employee likely would be requested to provide the review.

In a previous opinion, CEO 77-107, we advised that no prohibited conflict of interest would be created were a marine biologist with the Department of Natural Resources to serve privately as a consultant on two studies, the subjects of which he had researched in his capacity as a state employee. Except for the possibility that the subject employee might become involved in reviewing in his official capacity the work he had performed as a consultant, our response to your question would follow the rationale of our earlier opinion.

However, Section 112.313(7)(a), Florida Statutes, 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. Clearly, the subject employee's public duty to independently and impartially review a seagrass mitigation project in behalf of the Department would be impeded by the fact that he was reviewing and evaluating his own work as a consultant. Under these circumstances, a prohibited conflict of interest would be created were the subject employee to undertake the proposed consultation. However, under the circumstances you have presented, we are unable to conclude that the subject employee would be prohibited from accepting the proposed consulting contract, because it is not known whether the Department would or would not be asked to review the project. In other words, we cannot conclude that the consultation would create a continuing or frequently recurring conflict or that it would impede the discharge of his public duties without knowing whether the Department and the employee will become involved.

Accordingly, we find that the subject employee would be prohibited from engaging in the proposed consultation if the Department has been asked to review the project with which the employee would be associated. However, if the Department has not been asked to become involved, then no prohibited conflict of interest would be created were the subject employee to engage in the proposed consultation.