CEO 83-74 -- September 22, 1983

CONFLICT OF INTEREST

STATE UNIVERSITY PROFESSOR'S CORPORATION CONTRACTING WITH BOARD OF REGENTS

To: Mr. Karl Thorne, Professor, University of Florida Department of Architecture

SUMMARY:

No prohibited conflict of interest would be created were a corporation of which a State university professor is president to contract with the Board of Regents to provide professional architectural services. Section 112.313(3), Florida Statutes, prohibits a State employee from acting in a private capacity to sell any services to his "agency," a term which is defined to mean any State university. Here, the employee would not be acting to sell his firm's services to his agency, but rather to the Board of Regents. Similarly, Section 112.313(7) would not be violated, as he would not be employed with a business entity doing business with his own agency.

QUESTION:

Would a prohibited conflict of interest be created were a corporation of which you are president to contract with the Board of Regents to provide professional architectural services, where you are employed as an Associate Professor in the Department of Architecture of a state university?

Your question is answered in the negative.

In your letter of inquiry you advise that you are an Associate Professor in the Department of Architecture at the University of Florida, which has sanctioned your practice of architecture for several years. You also advise that you are president of an architectural corporation which has been certified by the Department of Commerce as a minority corporation.

Chapter 83-333, Section 14, Laws of Florida, authorizes and provides funding for specified public educational capital outlay projects, including several appropriations to the Board of Regents of the State University System for professional services, purchasing, and construction of projects on the various State university campuses. The Act provides that not less than ten percent of the amounts provided in that act for public educational capital outlay is to be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals, except to the extent that the contracting authority determines otherwise. You advise that as President of your corporation, you have met with a representative of the Board of Regents to discuss the possibilities of the firm's providing professional services under this "set aside" program. Finally, you advise that your firm would not seek to do work for the University of Florida at this time, and that you are interested only in participating in the ten percent "set aside" program for minority businesses at all other institutions.

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

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1981).]

The second part of this provision prohibits a State employee from acting in a private capacity to sell any services to his own agency. The term "agency" is defined in Section 112.312(2), Florida Statutes, to mean ". . . any . . . state university." Therefore, as an employee of the University of Florida, you are prohibited from selling any services to that University. However, you have indicated that your firm's services would be provided to the Board of Regents, which clearly is a separate agency under this definition. In addition, the Code of Ethics 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).]

As your firm would be doing business with the Board of Regents rather than with the University of Florida, we find that you would not be employed with a business entity doing business with your agency. Nor does it appear that the services you would be rendering would present a continuing or frequently recurring conflict of interest, or would impede the full and faithful discharge of your public duties as an Associate Professor.

Accordingly, we find that no prohibited conflict of interest would be created were your architectural firm to provide services to the Board of Regents in conjunction with construction projects at institutions other than the University of Florida.