CEO 87-12 -- March 11, 1987

CONFLICT OF INTEREST

UTILITY AUTHORITY EMPLOYEES

ENGAGING IN OUTSIDE EMPLOYMENT

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

SUMMARY:

No prohibited conflict of interest exists where employees of a publicly owned utility authority own a printing business and work at a waterbed store. Section 112.313(7)(a), Florida Statutes, is not violated as these business entities are not regulated by, or doing business with, the utility authority, and Section 112.313(12)(c), Florida Statutes, exempts conflicts of interest based on the purchase or sale of utilities services. However, a prohibited conflict of interest exists where a line foreman has a partnership in an electrical business, and the assistant distribution superintendent and a service lineman have underground conduit system installation businesses. The Code of Ethics prohibits a public employee from having an employment relationship with a business entity which is subject to the regulation of his agency, or which would create a continuing or frequently recurring conflict of interest. CEO's 86-62, 81-9, and 79-41 are referenced.

QUESTION 1:

Does a prohibited conflict of interest exist where employees of the Kissimmee Utility Authority own a printing business and work at a waterbed store?

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

In your letter of inquiry you advise that the Kissimmee Utility Authority (KUA) is a publicly owned utility authority which is organized and exists under the laws of the State of Florida and the Kissimmee City Charter. You further advise that certain KUA employees hold outside jobs that they perform after working hours. One employee owns a printing business with his wife, and another employee works at a waterbed store. You question whether either of these activities would create a prohibited conflict of interest.

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 a public employee from having any employment or contractual relationship with a business entity which is regulated by, or doing business with, an agency of which he is an employee. Clearly, the KUA does not regulate printing businesses or waterbed stores. Further, from the facts presented, it does not appear that either of these business entities are doing business with the KUA. While it is probable that both of these enterprises purchase their utilities from the KUA, Section 112.313(12)(c), Florida Statutes, exempts conflicts of interest based on the purchase or sale of "any utilities service."

Further, we do not find that the employees' outside employment would create a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of their public duties, in violation of the second part of Section 112.313(7)(a), Florida Statutes. We see no basis for a conflict of interest in this respect as there are no relationships between the business entities and the public agency, and the subject employees perform their outside work on their own time.

Accordingly, we find that the subject KUA employees are not prohibited by Section 112.313(7)(a), Florida Statutes, from owning a printing business and working in a waterbed store.

QUESTION 2:

Does a prohibited conflict of interest exist when utility authority employees engage in outside employment whereby a line foreman has a partnership with his son in an electrical business, the assistant distribution superintendent and his wife have an underground conduit system installation business, and a service lineman also has an underground conduit system installation business?

This question is answered in the affirmative.

You advise that utility authority employees engage in the following outside employment: (1) a line foreman has a partnership with his son in an electrical business; (2) the assistant distribution superintendent and his wife have an underground conduit system installation business; and (3) a service lineman has an underground conduit system installation business. All of these individuals' private work is inspected by the KUA distribution conduit inspector, and the distribution conduit inspector is supervised by the assistant distribution superintendent during working hours.

Section 112.313(7)(a), Florida Statutes, prohibits a public employee from having a contractual relationship with a business entity which is subject to the regulation of his agency. Thus, in CEO 86-62, we advised that a planner/draftsman with a county building, planning and zoning department was prohibited from engaging in the building industry as a general contractor within the county. Similarly, in CEO 81-9, we advised that a town building official would be prohibited from doing business as a building contractor within the town. In CEO 79-41, we further advised that a county plumbing and gas inspector would be prohibited from performing electrical contracting work inspected by his agency. While in this case, the employee was not in a position to inspect his own electrical work, we based our decision on the fact that the work would be inspected by another member of his agency.

As the private work of the utility authority employees must be inspected by the KUA, we find that these employees' outside employment is subject to the regulation of their agency and thereby is prohibited by Section 112.313(7)(a), Florida Statutes.

This provision also prohibits a public employee from having any employment that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. As explained in Zerweck v. State Commission on Ethics, 409 So.2d 57, 61 (Fla. 4th DCA 1982), Section 112.313(7)(a), Florida Statutes, requires a review of a public employee's duties and private employment "to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'" In this case, the fact that the assistant distribution conduit superintendent supervises an employee who inspects his private work creates such a conflict. This is not to imply that the superintendent would not be capable of performing his public duties without regard for his private interests, however. The critical issue is whether his private employment is of such a nature as to tempt him to disregard his public responsibilities.

Your questions are answered accordingly.