CEO 87-42 -- June 11, 1987

CONFLICT OF INTEREST

FORMER EMPLOYEE OF DEPARTMENT OF HIGHWAY SAFETY

AND MOTOR VEHICLES BEING EMPLOYED BY COMPANY

CONTRACTING WITH DEPARTMENT

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

SUMMARY:

No prohibited conflict of interest would be created under Section 112.3185, Florida Statutes, were a former employee of the Department of Highway Safety and Motor Vehicles to be employed by a company which has contracted with the Florida Highway Patrol to inspect school buses. Here, the employee was not involved in the development or procurement of that contract. Additionally, Section 112.3185, Florida Statutes, would not prohibit the former employee from working for the company if it should contract with the Florida Highway Patrol to provide a motor vehicle inspection program as long as the employee did not participate in the development or procurement of the contract, and is not employed in connection with that contract.

QUESTION:

Would a prohibited conflict of interest exist were you, the Inspector Chief of Field Operations for the Bureau of Aircraft/Fleet Property Management in the Division of Florida Highway Patrol of the Department of Highway Safety and Motor Vehicles, to become employed upon retirement from your public position by a company which has contracted with the Florida Highway Patrol to inspect school buses, or which may contract with the Florida Highway Patrol to provide a motor vehicle inspection program?

Your question is answered in the negative, subject to the exception noted below.

In your letter of inquiry you advise that you soon will retire from your position as the Inspector, Chief of Field Operations for the Bureau of Aircraft/Fleet Property Management, Division of Florida Highway Patrol (FHP), Department of Highway Safety and Motor Vehicles. You further advise that you intend to contact various entities in your search for future employment. One of the businesses which you plan to contact currently has a contract with the FHP to inspect school buses in Dade County. You had no involvement with this contract, and it is your understanding that the contract will expire within a few months.

This business is also involved in the promotion of a motor vehicle inspection program for the State. Pending legislation would provide for private contractors to bid on an inspection program, and this business would probably bid if the Legislature passed such a bill. As a former Chief of Motor Vehicle Inspection with the FHP, you have advised the Patrol on the number of troopers it would take to properly police an inspection program and what the duties of these troopers would be in the event that the FHP were given the responsibility of such a program. You also have reviewed the various bills relating to an inspection program with FHP lobbyists and answered questions presented to you because of your knowledge of the inspection process.

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

No agency employee who participates through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, or auditing or in any other advisory capacity in the procurement of contractual services shall become or be, while an agency employee, the employee of a person contracting with the agency by whom the employee is employed. [Section 112.3185(2), Florida Statutes (1985).]

This provision prohibits an executive branch State employee from concurrently being employed by a business entity which is under contract with the employee's agency for "contractual services," if that employee participated in the procurement of those services in any capacity. As you would retire from your public position prior to beginning any new employment, this provision would not apply to your situation.

The Code of Ethics further provides:

No agency employee shall, after retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract in which the agency employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice or investigation while an officer or employee. [Section 112.3185(3), Florida Statutes (1985)] No agency employee shall, within 2 years of retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract for contractual services which was within his responsibility while an employee. [Section 112.3185(4), Florida Statutes (1985)]

Generally, Section 112.3185(3), Florida Statutes, prohibits a former State employee from private employment in connection with any contract with which he was involved while a public employee. Section 112.3185(4), Florida Statutes, would be violated if the former employee worked in a non-agency capacity during the two-year period following his public employment in connection with any contract for services which was within his responsibility as a public employee.

No prohibited conflict of interest would exist with regard to the contract providing for the inspection of school buses, as you had no involvement with that contract. Furthermore, you would not be prohibited from this private employment by virtue of the fact that you rendered advice pertaining to inspection program legislation, as such legislation would not constitute a contract. However, should any legislation become law which would allow the Florida Highway Patrol to award the inspection program contract to the business for which you contemplate working, a prohibited conflict of interest would exist if you became employed in connection with that contract, and had participated personally and substantially in the development or procurement of the contract, or the contract was within your responsibility while an employee.

Your question is answered accordingly.