CEO 83-87 -- December 15, 1983

CONFLICT OF INTEREST

DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY EMPLOYEE FORMING CORPORATION TO CONSULT ON TAX CREDIT AND WAGE SUBSIDY PROGRAMS

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

SUMMARY:

No prohibited conflict of interest would be created were a labor employment and training specialist with the Department of Labor and Employment Security, Bureau of Job Training, to form a corporation with other individuals to present seminars regarding tax credit and wage subsidy programs offered through the federal government, the Department of Health and Rehabilitative Services, the Department of Community Affairs, and his Department. Section 112.313(7)(a), Florida Statutes, would not be violated as the employee's duties do not involve monitoring the private employers who would attend the corporation's seminars. The employee is not in a position within the Department to turn inquiries for the services of the Department into opportunities for private gain, which would violate Section 112.313(6), Florida Statutes. As the information to be imparted at the seminars is available to the general public, Section 112.313(8), Florida Statutes, would not be violated. CEO's 80-21 and 81-54 are distinguished.

QUESTION:

Would a prohibited conflict of interest be created were you, a labor employment and training specialist with the Department of Labor and Employment Security, Bureau of Job Training, to form a corporation with other individuals to present seminars regarding tax credit and wage subsidy programs offered through the federal government, the Department of Health and Rehabilitative Services, the Department of Community Affairs, and your Department?

Your question is answered in the negative under the circumstances presented.

In your letter of inquiry you advise that following a reorganization of the Department of Labor and Employment Security, you currently are employed as a labor, employment, and training specialist with the Bureau of Job Training, charged with monitoring the performance of Florida's local jurisdictions under the federal Job Training Partnership Act. You also advise that for the four years prior to this change of duties, you were involved directly in the development, monitoring, and promotion of both federal and state job tax credit programs for the Department. These programs provide private sector employers tax breaks for hiring certain individuals.

In addition, you advise that while performing these duties, you delivered a tax incentives presentation to an employer seminar. Following the seminar, you were approached concerning the possibility of participating in a private seminar organization to provide information concerning job tax credits. At the present time, you are interested in forming a corporation with other individuals to present seminars regarding tax credit and wage subsidy programs offered through the federal government, the Department of Health and Rehabilitative Services, the Department of Community Affairs, and the Department of Labor and Employment Security.

The Code of Ethics for Public Officers and Employees provides in 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 (1981).]

The first part of this provision prohibits you from having any employment or contractual relationship with a business entity which either is doing business with or is subject to the regulation of your agency. As you currently are employed within the Bureau of Job Training of the Department's Division of Labor, Employment and Training, we find that the Bureau is your "agency" for purposes of the Code of Ethics. See the definition of "agency" contained in Section 112.312(2), Florida Statutes.

You have advised that the Bureau of Job Training is responsible for the Department's functions under the Job Training Partnership Act, including planning, reviewing plans, auditing, monitoring, providing assistance, and taking corrective actions under the Act. Therefore, it is apparent that your proposed corporation would not be doing business with or be subject to the regulation of the Bureau.

Section 112.313(7)(a) also prohibits you from having any employment or contractual relationship which would create a continuing or frequently recurring conflict of interest or which would impede the full and faithful discharge of your public duties. In this regard, we note that your position is responsible for monitoring sub-recipients of federal job training funds by desk and on-site reviews of fiscal, administrative and record-keeping procedures of these entities. In a telephone conversation with our staff, you advised that the sub-recipients of job training funds are governmental units within each of the 24 service delivery areas of the State under the Job Training Partnership Act. These entities are responsible for administering the job training plan created for each service delivery area under the Act.

We are of the opinion that your association with the proposed corporation would not present a continuing or frequently recurring conflict of interest or impede the discharge of your public duties because your corporation would not be presenting seminars to the sub- recipients, but rather to private employers. In addition, you have advised that the seminars only would advise employers of the existence of tax credit and wage subsidy programs and where to obtain them, rather than providing assistance in securing these benefits. You also advised that, although it is unlikely, you may be instructed in the future to sample specific employer contracts. Should this occur and should you become aware that one of the attendees of the corporation's seminars is included in the sample, you state that you would exempt yourself from reviewing that employer and select a new sample employer. Under these circumstances, because of the remoteness of your public duties from those businesses which are likely to be the audience for the corporation's seminars, we find that there would be no continuing or frequently recurring conflict of interest and no substantial impediment to the performance of your public duties.

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 section 104.31. [Section 112.313(6), Florida Statutes (1981).]

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 (1981).]

In CEO 80-21 we found that these provisions would prohibit an employee of the Office of the State Courts Administrator from consulting in a private capacity with organizations which could not be assisted by that Office. There, we found that the employee would be using information gained from his research and preparation for the Office, information not available to the general public, for his personal gain or benefit as a private consultant. In addition, we found that the employee was in a position to use his position to obtain information from his agency as to which persons needed assistance, which then could be supplied by his private consultations.

In CEO 81-54, we found that these provisions would prohibit an employee of the Department of Health and Rehabilitative Services from utilizing as a private consultant a training methodology he had developed as an employee of the Department. However, in CEO 82-79, we found that the same employee could engage in private consulting activities so long as the program imparted was not developed while a state employee, but rather was based on information available to the general public.

In our view, your situation is distinguishable from those of CEO 80-21 and CEO 81-54. First, we note that the Bureau of Job Training, within which you currently are employed, does not engage in presenting information regarding tax credit and wage subsidy programs. Currently, you advise, the Bureau of Placement is in charge of tax credit programs, although no one within that Bureau is doing the seminar presentations which you used to do. Therefore, we conclude that you are not in a position to turn inquiries for the services of your agency into opportunities for private gain, unlike the situation in CEO 80-21. Secondly, you have advised that all of the information which would be imparted at seminars sponsored by your corporation is available to the general public through publications of various private and governmental entities. Therefore, we find your situation to be more analogous to that in CEO 82-79 than that in CEO 81-54.

Accordingly, we find that no prohibited conflict of interest would be created were you to participate in forming a corporation to present seminars regarding tax credit and wage subsidy programs offered through the federal government, the Department of Health and Rehabilitative Services, the Department of Community Affairs, and the Department of Labor and Employment Security.