CEO 86-65 -- September 17, 1986

CONFLICT OF INTEREST

COUNTY HEALTH DEPARTMENT EMPLOYEE CONTRACTING WITH COUNTY TO PROVIDE GARBAGE COLLECTION SERVICE

To: Mr. John H. Adams, Environmental Health Director, Baker County Health Department, Macclenny

SUMMARY:

A prohibited conflict of interest would be created were the environmental health director of a county health department to bid for and receive a county contract for garbage collection. As the health department, and the environmental health director in particular, is responsible for investigating and abating sanitary nuisances relating to garbage and other solid waste, Section 112.313(7), Florida Statutes, would prohibit the environmental health director from contracting to provide garbage collection services.

QUESTION:

Would a prohibited conflict of interest be created were you, the environmental health director of a county health department, to contract with the county to provide garbage collection services?

Your question is answered in the affirmative.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that you serve as the Environmental Health Director for the Baker County Health Department. The County has sought bids from private entities for the award of a contract to collect garbage at 18 dumpster sites around the County. Of the companies bidding for the contract, you were the second low bidder. You are in a position to receive the contract should the low bidder default or not meet County specifications, in which case the County could terminate the contract and award it to you.

At present, there is no County ordinance requiring the Health Department to inspect dumpster sites routinely. However, the Department is responsible for investigating any complaints received regarding sanitary nuisances, including nuisances relating to garbage and other solid waste. The Department also is responsible for taking necessary steps to abate sanitary nuisances, such as notification of persons creating or maintaining the nuisance to remove or abate it, administrative hearings, administrative fines, and civil or criminal court proceedings. You have advised that complaints received by the Department are put in writing by your secretary and recorded in a log book. The complaint is then given to you, and you have an assistant investigate the complaint. If a sanitary nuisance is found, the person responsible for the unsanitary condition is notified and given a reasonable period of time to abate the problem. To date, problems have been resolved at this point without the necessity of legal remedies. The Department handles few nuisance complaints each year, with the summer months producing the majority.

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 (1985).]

This provision prohibits you from having any contractual relationship that would create a continuing or frequently recurring conflict of interest or impede the full and faithful discharge of your public duties. The term "conflict of interest" is defined to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." Section 112.312(6), Florida Statutes. When interpreting these provisions, we are required to make

an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.' [Zerwick v. State Commission on Ethics, 409 So.2d 57, 61 (Fla. 4th DCA 1982).]

In previous opinions we have advised that environmental health specialists with county health departments could be employed part- time by entities inspected by the health department, where the employee was not responsible for inspecting or regulating the entity or for supervising the positions responsible for inspections. CEO 85-16 and CEO 85-81. Here, although the Health Department does not routinely inspect dumpsters, it is responsible for responding to complaints and initiating enforcement procedures; this is a function for which you are directly responsible. We note that the specifications for the proposed contract make the contractor responsible not only for transporting dumpsters but also for applying deodorizing sprays and insecticides. Therefore, in our view your public duties and private employment are not compatible, separate, and distinct, but rather coincide.

Accordingly, we find that a prohibited conflict of interest would be created were you to receive the garbage collection contract from the County while remaining the Environmental Health Director of the Health Department.