CEO 80-76 -- October 30, 1980

CONFLICT OF INTEREST

ENGINEER EMPLOYED BY DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES OFFICE OF ENTOMOLOGY PROVIDING PROFESSIONAL SERVICES TO CLIENT HOLDING PERMIT GRANTED BY D.H.R.S. OFFICE OF LICENSURE AND CERTIFICATION

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 having a contractual relationship with a business entity subject to the regulation of his public agency. In determining the "agency" of an employee of the Department of Health and Rehabilitative Services, units of that department have been analogized to the department, division, and bureau model, the language of which is employed in the definition of "agency" for purposes of the Code of Ethics. See CEO's 78-50 and 80-1, as well as s. 112.312(2), F. S. Employing this analogy, no conflict of interest would be created were an employee of the H.R.S. Office of Entomology privately to provide engineering services to a client holding a public swimming pool permit granted by the department's Office of Licensure and Certification, as the two offices constitute separate agencies for purposes of the Code of Ethics. Although s. 112.313(7)(a) further prohibits contractual relationships which will create continuing or frequently recurring conflicts with public duties or which would impede the full and faithful discharge of those duties, the subject employee's responsibilities in no way relate to the permitting of public swimming pools. Thus, no conflict of interest is deemed to be created in the proposed services.

QUESTION:

Would a prohibited conflict of interest be created were I, an engineer employed by the Mosquito Control Section of the Office of Entomology, Department of Health and Rehabilitative Services, to provide professional engineering services to a client holding a public swimming pool permit granted by the department's Office of Licensure and Certification?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advised that you are employed by the Department of Health and Rehabilitative Services in its Mosquito Control Section. In that position, you advised, you are involved with the planning of mosquito control projects in connection with local mosquito control agencies within the state, and you coordinate these projects with representatives of the Department of Environmental Regulation, the Department of Natural Resources, and the Army Corps of Engineers. You further advised that you have been contacted by a friend about the possibility of your providing engineering services for him in the modification of a public swimming pool. As he has been granted a permit to operate the pool, and as all engineering plans for modifications of public swimming pools must be approved under department rules contained in ch. 10D-5, F.A.C., you question whether a prohibited conflict of interest would be created were you to undertake this work.

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.]

As the Department of Health and Rehabilitative Services is not structured on the department -- division -- bureau model, but rather is structured by units called "offices," in previous advisory opinions we have determined an employee's "agency" by analogizing the structure of the department to department -- division -- bureau model. See CEO's 78-50 and 80-1. In those opinions we found that offices directly supervised by an assistant secretary of the department are analogous to divisions of other state departments and that offices directly supervised by those offices are the functional equivalents of bureaus.

According to information you have provided, the Assistant Secretary for Operations directly supervises the Office of Health and Technical Support Services, which in turn supervises the Office of Entomology, of which the Mosquito Control Section is a part. Thus, the Office of Health and Technical Support Services would be analogous to a division and the Office of Entomology would be your "agency," analogous to a bureau. However, you have advised that the department's Office of Licensure and Certification is responsible for the permitting of public swimming pools. That office reports directly to the Assistant Secretary for Operations and therefore is analogous to a division separate from the Office of Health and Technical Support Services, which includes your "agency," the Office of Entomology. Therefore, the business entity with which you would be contracting is not regulated by your agency, but by another agency within the department.

Section 112.313(7)(a) also prohibits a public employee from having a contractual relationship that will create a continuing or frequently recurring conflict with his public duties or that would impede the full and faithful discharge of those duties. Since your duties as an employee of the Mosquito Control Section do not relate to the permitting of public swimming pools, which is handled by the Office of Licensure and Certification, we find that the second portion of s. 112.313(7)(a) also does not apply to the services you propose to render.

Accordingly, we find that no prohibited conflict of interest would be created were you to provide professional engineering services to a client who has been granted a public swimming pool permit by the Department of Health and Rehabilitative Services, Office of Licensure and Certification.