CEO 83-19 -- April 21, 1983

CONFLICT OF INTEREST

WATER MANAGEMENT DISTRICT ENGINEER EMPLOYED BY ENGINEERING FIRM TO TRANSLATE COMPUTER PROGRAM DEVELOPED BY DISTRICT

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

SUMMARY:

No prohibited conflict of interest would be created were an engineer employed by the South Florida Water Management District to be hired by an engineering firm to translate a computer program developed by the District and made available to the public into a program compatible with the firm's computer. Section 112.313(8), Florida Statutes, which prohibits the disclosure or use of certain information, would not apply, as the computer program has been made available to the public by the District, and as the employee's ability to convert this program into different languages results from his background in programming rather than his employment with the District. Nor would the employment create a continuing or frequently recurring conflict of interest or impede the full and faithful discharge of the employee's duties, since the employee is not involved in reviewing applications submitted by the engineering firm.

QUESTION:

Would a prohibited conflict of interest be created were an engineer employed by the South Florida Water Management District to be hired by an engineering firm to translate a computer program developed by the District and made available to the public into a program compatible with the firm's computer?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. Vince Faraone, an engineer employed by the South Florida Water Management District, was involved in the development of a computer program to aid in the design and evaluation of typical surface water management systems to be constructed in South Florida. This program has been made available to all the engineering firms which request surface water management permits for their clients' projects within the District and can be used by these firms as a tool to design surface water management systems, although it is not required to meet District criteria. As the program was written in a particular language for the District's computer, it is necessary for firms using other types of computers to convert the program into a program compatible with their computers.

You advise that outside engineering firms have expressed interest in hiring the subject employee to translate the computer program into one compatible with their own computers. The employee's background in programming prior to his employment with the District has given him the knowledge to translate this program into other languages utilized by different types of computers. The District does not require him to perform these computer conversions as part of his job responsibilities, as the District's policy is that any conversions necessary to make the program compatible with other systems are the responsibility of the user. If any one of the firms had an individual on their staff skilled in the art of computer programming and program conversion, they would not need to hire the employee, you advise. Similarly, the firms could hire individuals other than the employee to perform the conversion. This outside employment would require approximately 40 hours of work, and would be on a one-time only basis.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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), Florida Statutes (1981).]

We are of the opinion that this provision does not apply to the situation you have described. First, the computer program developed by the District has been made available to the public. Secondly, the employee's ability to convert the program into different languages is not a result of his employment with the District, but instead results from his background in programming prior to his employment with the District.

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), Florida Statutes (1981).]

We perceive that a conflict of interest would be created were the subject employee to be hired by an engineering firm to translate the program for the firm while being in a position to review an application for a surface water management permit submitted by that firm. However, you have advised that the employee is not involved in reviewing applications for such permits, but rather has been assigned to design and develop new computer models regarding storm water management.

Accordingly, we find that no prohibited conflict of interest would be created were the subject employee to be hired by an engineering firm to translate the District's computer program into a program compatible with the firm's computer.