CEO 87-73 -- September 16, 1987

CONFLICT OF INTEREST

GAME AND FRESH WATER FISH COMMISSION EMPLOYEE

ENGAGING IN OUTSIDE EMPLOYMENT

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

SUMMARY:

No prohibited conflict of interest exists under Sections 112.313(3) and 112.313(7)(a), Florida Statutes, when a state wildlife biologist with the Game and Fresh Water Fish Commission accepts outside employment as a real estate agent, so long as the employee or his real estate company does not sell property to his public agency and he is not required in his public position to evaluate property, the sale of which would benefit the real estate company. However, a prohibited conflict of interest would be created were the subject employee to accept private employment with a wildlife services company in which he would sell seeds, feeders, and equipment, and consult with landowners concerning beaver control and quail, dove, turkey, and deer management. The employee may sell farm products and commercial feeds privately as long as he does not have any contractual relationships which would violate Section 112.313(7)(a) and does not solicit sales from individuals with whom he deals in the course of his public duties. CEO 85-1 is referenced.

QUESTION 1:

Would a prohibited conflict of interest be created were a Game and Fresh Water Fish Commission wildlife biologist to accept outside employment as a real estate agent?

Under the conditions noted below, this question is answered in the negative.

In your letter of inquiry you advise that .... is a wildlife biologist in the Bureau of Wildlife Management, Division of Wildlife, of the Game and Fresh Water Fish Commission. His duties consist of alligator management and technical assistance on wildlife management to landowners. He also is required on occasion to evaluate the wildlife management and recreational potential of lands being considered for acquisition by the Commission or through the various other state land acquisition programs. You further advise that he has requested authorization for employment as a real estate agent with a private real estate company.

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

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1985).]

This provision prohibits a public employee from acting in a private capacity to sell any realty to his own agency. For purposes of the Code of Ethics, the subject employee's agency is the Bureau of Wildlife Management. See Section 112.312(2), Florida Statutes, defining the term "agency." By virtue of Section 112.313(3), the employee would be prohibited from selling any property to the Bureau of Wildlife Management.

The Code of Ethics also provides:

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 part of this provision prohibits a public employee from having an employment or contractual relationship with a business entity which is subject to the regulation of or doing business with his agency. It is clear that the Bureau of Wildlife Management does not regulate real estate companies. However, the employee would violate this provision if the real estate company he works for did business with the Bureau of Wildlife Management.

Section 112.313(7)(a), Florida Statutes, also prohibits any employment or contractual relationship that will impede the full and faithful discharge of an employee's public duties. In our view, such a conflict would exist in situations in which the employee would be required in his public position to evaluate property for purchase by the State where the real estate company which employs him would receive a commission for the sale of the property.

Accordingly, we find that no prohibited conflict of interest would be created were the subject wildlife biologist to pursue outside employment as a real estate agent where the employee or his real estate company does not sell property to his public agency and he is not required in his public position to evaluate property, the sale of which would result in a commission to the real estate company.

QUESTION 2:

Would a prohibited conflict of interest be created were the wildlife biologist to accept private employment with a company in which he would sell seeds, feeders, and equipment, and consult with landowners concerning beaver control and quail, dove, turkey, and deer management?

This question is answered in the affirmative.

In your letter of inquiry you advise that the wildlife biologist also has requested authorization for employment with a company which provides wildlife services. In this position he would sell various seeds, feeders, and equipment, and consult with landowners concerning beaver control and quail, dove, turkey, and deer management. In a telephone conversation with our staff, the subject employee advised that this private consulting work would be similar to the services he provides in his public position except that in his private consulting work he would be providing ongoing services and more detailed technical assistance to landowners.

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

In our view, the employment of the wildlife biologist by a company which provides wildlife services would create a continuing or frequently recurring conflict between his private interests and the performance of his public duties. Zerweck v. State Commission on Ethics, 409 So. 2d 57, 61 (Fla. 4th DCA 1982), explained that Section 112.313(7)(a), Florida Statutes, requires a review of the public employee's duties and private employment "to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'" In this case, the fact that the employee is responsible in his public position, for providing technical assistance to landowners for wildlife management creates such a conflict. In a telephone conversation with our staff, the employee further advised that he also makes recommendations concerning certain types of permitting of landowners. It appears that the individuals whom the employee provided technical assistance to or evaluated for permitting in his public position, are most likely to be clients of his proposed employer.

We also are of the opinion that allowing this employee to engage in this type of outside employment could create the appearance of a misuse of public position, as the employee would be in a position to recommend in connection with his public duties the products sold by his private employer. In addition, just as we noted in CEO 85-1, we can envision a situation here in which a private landowner contacts an employee for assistance and is told that the Bureau cannot provide all the services requested, but is informed that the employee's private employer provides such services for a fee.

Accordingly, we find that a prohibited conflict of interest would be created were the subject employee to accept outside employment with a company in which he would sell seeds, feeders, and equipment, and consult with landowners concerning beaver control and quail, dove, turkey, and deer management.

QUESTION 3:

Would a prohibited conflict of interest be created were the wildlife biologist to be self-employed, selling farm products and commercial feeds?

Subject to the conditions noted below, this question is answered in the negative.

In your letter of inquiry you advise that the wildlife biologist also has requested authorization for self-employment in which he would sell farm products and commercial feeds.

As we referenced in our response to your first question, Section 112.313(3), Florida Statutes, would prohibit the subject employee from acting in a private capacity to sell any goods to his agency. The first part of Section 112.313(7)(a), Florida Statutes, would prohibit the employee from having any contractual relationship with any business entity or agency which is subject to the regulation of or doing business with the Bureau of Wildlife Management. Also, as in Question 2, above, the employee would experience a continuing or frequently recurring conflict between his private interests and the performance of his public duties if he were to sell to individuals whom he provided technical assistance to or evaluated for permitting in his public position.

The Code of Ethics also provides in relevant part:

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).]

While it is difficult to assess the application of this provision without an examination of all the relevant circumstances, we are of the opinion that no conflict would exist under the statute were the employee privately to sell farm products and commercial feeds to individuals as long as the employee does not solicit sales from individuals whom he deals with in the course of his public duties. However, as we advised in Question 2, above, this type of pursuit could create the appearance of a misuse of public position if the employee is in the position in his employment as a wildlife biologist to recommend products which he privately sells.

Your question is answered accordingly.