CEO 87-91 -- December 10, 1987

CONFLICT OF INTEREST

CITY PLUMBING PLANS EXAMINER EMPLOYED AS MORTGAGE BROKER

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

SUMMARY:

No prohibited conflict of interest exists where a city plumbing plans examiner is employed as a mortgage broker for a mortgage company. Section 112.313(7)(a), Florida Statutes, does not prohibit the employee from engaging in this type of work as the mortgage company is not subject to the regulation of, or doing business with, the city. Also, the nature of the employee's private duties are such that they would not create a continuing or frequently recurring conflict between his private interests and the performance of his public duties.

QUESTION:

Does a prohibited conflict of interest exist where you, a city plumbing plans examiner, are employed as a mortgage broker for a mortgage company?

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

In your letter of inquiry you advise that you are employed by the City of Pompano Beach as a Plumbing Plans Examiner. In a telephone conversation with our staff, you advised that in this position you are responsible for reviewing the plumbing plans of construction jobs that utilize plumbing to determine whether these plans meet the plumbing requirements set forth by the County Code and for making on- site inspections. Within the context of your work you come into contact with plumbing contractors rather than general contractors. You question whether you may be employed part-time as a mortgage broker for a mortgage company. In that position you would be responsible for soliciting mortgages for individuals who buy the homes constructed by general contractors. The company charges the buyer for this service according to a point system, and you receive a percentage of this fee as a commission.

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 subsection prohibits you from having any employment or contractual relationship with a business entity, such as a mortgage company, which is either subject to the regulation of, or doing business with, your agency. In a telephone conversation with our staff you advised that the mortgage company is neither regulated by, nor doing business with, the City.

In addition, we are concerned with the possibility that your acting as a mortgage broker for the mortgage company would lead to a frequently recurring conflict of interest or could impede the full and faithful discharge of your duties as Plumbing Plans Examiner in violation of the second part of Section 112.313(7)(a), Florida Statutes. In this respect, however, we note that your public duties require you to examine the work of plumbing contractors while you would deal with general contractors in your private employment. You have advised that a plumbing contractor is responsible to a general contractor for providing work which complies with code requirements, and therefore that you would not be in a position to benefit a particular general contractor by approving plumbing plans or work which were not up to code. Under the circumstances you have presented, we do not perceive any frequently recurring conflict between your efforts to obtain mortgages for buyers of homes and your duties as a Plumbing Plans Examiner. Nevertheless, we would caution you that your use of any information gained by reason of your public employment and not available to members of the general public for your personal gain or benefit or the personal gain or benefit of the mortgage company would constitute a violation of Section 112.313(8), Florida Statutes.

Accordingly, we find that under the circumstances presented no prohibited conflict of interest exists where you, a City Plumbing Plans Examiner, are employed part-time as a mortgage broker for a mortgage company.