CEO 89-14 -- April 13, l989

CONFLICT OF INTEREST

DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY ECONOMIST

PROVIDING WAGE LOSS ANALYSIS CONSULTING SERVICES

To: Mr. Mark Malo, Economist, Department of Labor and Employment Security (Bradenton)

SUMMARY:

No prohibited conflict of interest would be created were a Department of Labor and Employment Security economist to perform wage loss analysis as a member of a consulting group which provides comprehensive services for attorneys needing evaluations of former and future job prospects of disabled clients. Section 112.313(7)(a), Florida Statutes, would not be violated as the employee would not have an employment or contractual relationship with a business entity which was doing business with his agency. Section 112.313(8), Florida Statutes, which prohibits the use of certain information, would not apply as the employee would not utilize information gained by reason of his public position and not available to members of the general public in conducting the wage loss analysis.

QUESTION:

Would a prohibited conflict of interest be created were you, an economist with the Department of Labor and Employment Security, to perform wage loss analysis as a member of a consulting group providing comprehensive services for attorneys needing evaluations of former and future job prospects of disabled clients?

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

In your letter of inquiry you advise that you are employed as an Economist in the Bureau of Operations, Division of Labor, Employment and Training in the Department of Labor and Employment Security. In that position you collect and analyze economic and employment data so that hiring trends and other factors peculiar to the labor market may be identified and reported. This analysis requires you to utilize such resources as a monthly letter mailed to a representative group of employers soliciting total employment figures, information on tax contributions provided by the Department of Revenue, reports of issued building permits, unemployment compensation claims data, and information relating to firms or expansions of existing firms. Additionally, you may conduct surveys or prepare reports on special labor force topics such as occupational supply and demand, unusual labor market conditions, and wage levels and employment in selected industries. You also are responsible for composing a monthly letter which contains basic statistics such as the size of the labor force, the number of unemployed persons and the rate of unemployment, and for supplying labor market statistics to various organizations and the general public.

You further advise that you have been asked by a local hospital to perform "wage loss analysis" as a member of a consulting group comprised of the hospital, another company, and yourself. This group will provide comprehensive services for attorneys needing evaluations of former and future job prospects of disabled clients. The hospital will provide a loss of wage earning capacity and employability analysis, and the other company will be responsible for vocational evaluation, physical capacity evaluation, and respective reports. As a part of this group, you will provide an economic analysis of the loss of earning capacity report. In performing this task, you will be required to review the Dictionary of Occupational Titles (DOT), a book containing descriptions of various jobs which is compiled by the U.S. Department of Labor, and to operate a computer software program entitled "Labor Market Access" which manipulates a data base of 12,000 DOT job titles and routinizes the steps needed to calculate past and future income streams. In a telephone conversation with our staff you indicated that you will choose applicable job titles out of the DOT book and utilize a "local data base" which provides the amount of wages paid for jobs in a particular geographical area. You state that no confidential information will be used to perform the wage loss analysis, that the DOT book is available in major libraries, and that the program and local data base, which consists of publicly obtainable labor market figures, can be obtained from a private computer software company. All of your work will be performed using your personal computer equipment and during your off-duty hours.

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. [112.313(7)(a), Florida Statutes (1987).]

The first part of this provision prohibits a public employee from having an employment or contractual relationship with a business entity which is doing business with his agency. Previously, we have advised that a business entity is doing business with an agency where the parties have entered into a contract or other type of legal arrangement under which one party would have a cause of action against the other in the event of a default or breach. See CEO 85-7. While you have advised that the hospital has utilized the service provided by your Department which assists in locating job applicants for area employers, we are of the view that the hospital and the Department would not be "doing business" by virtue of this arrangement. You also indicate that no relationship exists between the other company involved in your proposed endeavor and the Department.

A public employee also is prohibited under Section 112.313(7)(a), Florida Statutes, from having an 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. Here, we are aware of no reason to believe that your consulting work would present you with such a conflict. We note that while the hospital has availed itself of your agency's job applicant services, as an Economist you have no involvement in this activity.

The Code of Ethics also provides:

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 (1987).]

While this provision prohibits the use of certain information for private gain, it would not apply under the circumstances you have described as you would not be using information which you gained by reason of your official position and which was not available to members of the general public in conducting the wage loss analysis. While your computer skills are critical to the performance of your private contract, you indicate that you have taken numerous courses to acquire these skills and currently are working on your doctorate in information systems.

Accordingly, we find that no prohibited conflict of interest would be created were you, a Department of Labor and Employment Security Economist, to perform wage loss analysis as a member of a consulting group which provides comprehensive services for attorneys needing evaluation of former and future job prospects of disabled clients.