CEO 84-41 -- June 7, 1984

CONFLICT OF INTEREST

DEPARTMENT OF ENVIRONMENTAL REGULATION EMPLOYEE PROVIDING SERVICES FOR COMPANIES INVOLVED IN DEVELOPMENTS PERMITTED BY DEPARTMENT

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

SUMMARY:

Under the circumstances and restrictions presented, no prohibited conflict of interest exists where the supervisor of the Dredge and Fill Section of the South Florida District of the Department of Environmental Regulation performs taxonomic identifications from water samples for two companies involved in development work permitted by the Department. Section 112.313(7), Florida Statutes, does not prohibit the employee from engaging in this type of work as he does not have any employment or contractual relationship with a business entity subject to the regulation of his agency. The conditions and restrictions imposed by the Department upon the employee's activity guard against the possibility that his outside work would interfere with the discharge of his responsibilities for the Department.

QUESTION:

Does a prohibited conflict of interest exist where the supervisor of the Dredge and Fill Section of the South Florida District of the Department of Environmental Regulation performs taxonomic identifications from water samples for two companies involved in development work permitted by the Department?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry you advise that Mr. Richard Cantrell is employed as the Supervisor of the Dredge and Fill Section of the South Florida District Office of the Division of Environmental Permitting, Department of Environmental Regulation. In that capacity, he makes recommendations to the District Manager and to the Bureau of Permitting staff on the denial or issuance of dredge and fill permits. His primary involvement is with dredge and fill or storm water permit applications, although he may become involved in drinking water or domestic waste projects.

We also are advised that the employee's wife, formerly employed as a biologist by the environmental quality laboratory of a large developer, has contracted with that laboratory to work on a part-time basis at home processing, sorting, and identifying samples of aquatic organisms. The employee assists his wife in these identifications, with his hours being included as part of her total hours billed under the contract. His wife receives all payment for this work. The District has handled thirteen permits involving this developer since 1980.

In addition, the employee's wife has a similar relationship with another company which acts as an agent for some permit applicants before the Department. The employee provides the same services and receives compensation in the same manner with regard to this work.

The samples provided from the developer's laboratory are associated with monitoring work required by a water management district and the United States Corps of Engineers. The employee does not know whether the samples for the agent company are associated with any work of the Department, although the study site is located outside of the District of his employment.

The Department has permitted the employee to perform this type of work only under certain conditions. First, all work is to be performed on his own time without using State equipment. Second, only taxonomic identifications would be performed; he is not to express professional opinions regarding water quality based on the data generated by his work. Third, he is not to work on samples which could be used in adversary proceedings between the companies and the Department. Fourth, he will not be available to the companies on any matter relating to water quality or pertaining to the work he would perform. Fifth, the companies will agree that the employee will not be required to testify in any proceedings for them where the Department is a party. Finally, the companies will not object to the employee testifying in behalf of the Department in any proceeding incident to his employment with the Department.

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 (1983).]

This provision prohibits a public employee from having any employment or contractual relationship with a business entity which is subject to the regulation of his agency. However, under the circumstances presented it appears that the employee does not have any employment or contractual relationship with either of the companies. Rather, it appears that he is working for his wife, who is the one contractually obligated to perform the work.

Section 112.313(7)(a) also prohibits a public employee from having any employment or contractual relationship which would present a continuing or frequently recurring conflict of interest or which would impede the full and faithful discharge of his public duties. In our view, the conditions imposed upon the employee's activity sufficiently guard against the possibility that his outside work would interfere with the discharge of his responsibilities for the Department. These conditions emphasize the narrow scope of the work he performs, while protecting the interests of the Department.

Accordingly, we find that the Code of Ethics does not prohibit the subject employee from engaging in this type of work under the conditions and restrictions noted in this opinion.