CEO 82-52 -- July 29, 1982

CONFLICT OF INTEREST

COUNTY POLLUTION CONTROL BOARD MEMBER CONTRACTING WITH INSURANCE CARRIER UNDERTAKING TO RESTORE WATER QUALITY IN LAKE WITHIN JURISDICTION OF BOARD

To: Mr. Sanford Minkoff, Attorney for Lake County Water Authority

SUMMARY:

A prohibited conflict of interest would be created were a pollution control board member to contract with an insurance carrier which is undertaking to restore water quality in a lake on behalf of an insured pursuant to an order of the Florida Department of Environmental Regulation, where the Board member would be contracting to conduct a water quality monitoring program regarding the carrier's restoration of water quality. Here, the board member would be faced with a continuing conflict of interest in violation of Section 112.313(7), Florida Statutes. However, no prohibited conflict of interest would be created were the board member to contract with the insurance carrier to compile and analyze water quality data he had gathered in another capacity prior to the date of the accident.

QUESTION:

Would a prohibited conflict of interest be created were a county pollution control board member who is a consulting biologist to contract with an insurance carrier which is undertaking to restore water quality in a lake on behalf of its insured pursuant to an order of the Florida Department of Environmental Regulation?

In your letter of inquiry and in a telephone conversation with our staff, you advised that Mr. John F. Dequine is a member of the Lake County Pollution Control Board, which supervises and regulates commercial, industrial, and other types of pollution-making activities within the County. You also advise that recently a fish kill was reported in a local lake which was investigated by the County Pollution Control Department, the Florida Department of Environmental Regulation (D.E.R.), the Florida Game and Fresh Water Fish Commission, and by the subject Board member as a consulting biologist to the Lake County Water Authority. The subject Board member's involvement was to determine whether aquatic weed control activities under his supervision had contributed to the kill. It was determined that the fish kill resulted from citrus wastes which had escaped from the accidental rupture of a pipeline transporting the waste from a canning company to a spray field, a disposal system which has been permitted by D.E.R. and the County Pollution Control Department. The canning company is regulated by the Pollution Control Board and currently operates under a variance which has been given by the Board and renewed several times.

Following investigation of the accident, D.E.R. has charged the canning company with violation of certain statutes. It is possible, you advised, that a consent order may be issued by D.E.R. which would assess a fine and require "cleanup" activities to restore water quality. Although the County Department of Pollution Control has not taken regulatory action in the case, the Department has cooperated with and concurs in the regulatory action of D.E.R., and the Department continues to provide D.E.R. with information concerning the accident. If a consent order is entered, it appears that the canning company's insurance carrier would undertake to contract for the improvement measures and would be responsible for monitoring water quality to determine their effectiveness.

As part of his supervision of hydrilla control as a consulting biologist for the Lake County Water Authority, the subject Board member has gathered data concerning water quality in the lake since 1974. The data has not been reported to the Water Authority but has been retained as part of the Board member's professional field notes and diary. Under these circumstances, the Board member raises two questions. First, he questions whether he may contract with the insurance carrier to compile water quality data gathered prior to the date of the fish kill and make it available with an interpretative report to assist the carrier's engineers in evaluating the recovery of the lake. Secondly, the Board member asks whether his consulting firm may bid with the insurer to conduct a water quality monitoring program required to accompany the restoration activities in the lake.

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), Florida Statutes (1981).]

The first portion of this provision prohibits a public officer from having any employment or contractual relationship with a business entity which is subject to the regulation of his agency. However, we find that prohibition inapplicable here, as the subject Board member would not be providing services to the canning company, which is regulated by the Board, but rather to the insurance carrier.

The second portion of Section 112.313(7)(a) prohibits the subject Board member from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. Were the subject Board member to conduct a water quality monitoring program for the insurance carrier, we feel that he would be involved in a continuing activity which would conflict with the interests of the Pollution Control Department. We note that the Department has cooperated with D.E.R. and has provided information to D.E.R. concerning the accident and the water quality of the lake. Therefore, it appears that if a consent order is entered and the carrier begins cleanup activities, the Department is likely to be involved in monitoring those activities or at least in assisting D.E.R. to monitor those activities. While this is continuing, the subject Board member would be monitoring the cleanup activities for the carrier. In the event of a dispute concerning the cleanup, it is likely that the subject Board member would be involved on the side of the carrier, with the Department's involvement being on the side of D.E.R., having supported D.E.R.

On the other hand, were a consent order entered and the subject Board member to contract with the carrier to compile and analyze water quality data previously gathered, the Board member would not be involved in the oversight of the cleanup activities of the carrier. There would be no continuing relationship with the carrier, and there would not be the possibility of conflict between the Board member and the Department's staff.

Accordingly, we find that no prohibited conflict of interest would be created under the circumstances you have presented were the subject Board member to contract with the insurance carrier to compile and analyze water quality data gathered prior to the date of the fish kill. However, we find that a prohibited conflict of interest would be created were the subject Board member to contract with the carrier to conduct a water quality monitoring program regarding the carrier's restoration of water quality.