CEO 87-70 -- September 16, 1987

CONFLICT OF INTEREST

CITY ENGINEERING DIVISION DIRECTOR COPYRIGHTING

ENGINEERING MANUAL SIMILAR TO ONE DEVELOPED FOR CITY

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

SUMMARY:

No prohibited conflict of interest would be created were the director of the engineering division of a city's department of community development to copyright and sell an engineering construction manual similar to one which he developed for the city on his own time and not as part of his duties with the city. Section 112.313(7), Florida Statutes, would not be violated as those entities involved in construction and engineering within the city would purchase the city manual from the city rather than purchasing the manual which the director would be selling privately. CEO 80-21 and CEO 81-54 are distinguished on the basis of the director's prior experience in the civil engineering field and because neither manual was written as part of his duties with the city.

QUESTION:

Would a prohibited conflict of interest be created were you, the director of the engineering division of a city's department of community development, to copyright and sell an engineering construction manual similar to one which you developed for the city on your own time and not as part of your duties with the city?

Your question is answered in the negative.

In your letter of inquiry you advise that you serve as Director of the Engineering Division of the City of Pinellas Park Community Development Department. In that position you are responsible for planning and directing municipal engineering programs in the design, inspection, and construction of public works improvements such as streets, storm drainage, water distribution and sanitary sewer collection systems, and recreational facilities.

You advise that shortly after beginning employment with the City, you wrote a two-part engineering and construction specifications manual which is being used as the standard for the City's engineering and construction projects and is being used by outside construction agencies, engineers, and architects as a design and reference tool for projects within City limits. Through City Council action, the manual is being sold to outside agencies and has been purchased by several municipalities and governmental agencies as a reference document.

The preparation of the manual was not done as part of your duties with the City, you advise. Although the original manual was developed on City premises, the actual writing, typing, and editing were done on your personal time and a great deal of the writing was done prior to your employment with the City.

Subsequently, you developed a similar two-part engineering/construction manual on your own, which is set up in written and disc form so that it may be modified for use in any municipality at a reasonable cost. This manual actually is a shell document with several blank areas in order to allow deletion, modification, and insertion of additional data as required in order to custom prepare a set of standard specifications for any entity. You advise that you would like to copyright the second manual and to market it as custom sets of specifications for municipal clients. You advise that you intend to allow the City to continue to produce, update, and sell its manual.

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).]

The first portion of this provision prohibits you from having a contractual relationship with a business entity which is doing business with or is subject to the regulation of your agency. However, those entities involved in construction and engineering work within the City would purchase the City manual through the City rather than the second manual which you would be selling. On this basis also, we find that your marketing the second manual would not present you with a continuing or frequently recurring conflict of interest and would not impede the full and faithful discharge of your public duties, in violation of the second part of Section 112.313(7)(a).

The Code of Ethics also provides:

MISUSE OF PUBLIC POSITION. -- No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes (1985).]

DISCLOSURE OR USE OF CERTAIN INFORMATION. -- No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), Florida Statutes (1985).]

In a previous opinion, CEO 80-21, we advised that these provisions would prohibit an employee of the office of the State Courts Administrator from offering his services as a consultant to organizations whose requests for assistance had been denied by that office. There, the employee's responsibilities included preparing a manual on creating citizen dispute settlement programs; he proposed to consult privately on how to set up such a program. Further, in CEO 81-54 we advised that these provisions would prohibit a State employee from forming a consulting corporation to provide a training program which he had developed as part of his responsibilities as a State employee. In contrast, here neither manual was written as part of your duties with the City. We further note that you have advised that the manuals were developed based on your 26 years' experience in the civil engineering field.

Accordingly, we find that no prohibited conflict of interest would be created were you to copyright and sell an engineering construction manual similar to the one which you developed for the City on your own time and not as part of your duties with the City.