CEO 89-55 -- October 26, 1989

CONFLICT OF INTEREST

DEPARTMENT OF COMMUNITY AFFAIRS EMPLOYEE SERVING

ON MEMBERSHIP COMMITTEE OF NONPROFIT CODE ORGANIZATION

To: Mary Kathryn Smith, Planning Manager, Bureau of Public Safety Affairs, Department of Community Affairs (Tallahassee)

SUMMARY:

A planning manager in the Bureau of Public Safety Affairs in the Department of Community Affairs is not prohibited by Section 112.313(7)(a), Florida Statutes, from serving as the chairman of the membership committee for a non-profit organization promulgating standard codes for use in Florida.

QUESTION:

Would a prohibited conflict of interest be created were you, Planning Manager in the Bureau of Public Safety Management of the Department of Community Affairs, also to serve as the membership committee chairman of a nonprofit model code organization which promulgates the standard codes which are recognized statutorily as one of the acceptable minimum building codes in Florida?

Your question is answered in the negative.

In your letter of inquiry you advise that you are employed by the Department of Community Affairs as a Planning Manager in the Bureau of Public Safety Management. You also advise that you serve on a committee sponsored by a nonprofit organization which does business with the Department from time to time. This organization is the model code organization promulgating standard codes which are recognized statutorily as one of the acceptable minimum building codes which may be used in the State. You serve as chairman for the membership committee of this organization. You are not compensated for your service, although the organization pays for your accommodations and other expenses when you attend a meeting related to your position as chairman of the committee.

The purpose of the membership committee is to make recommendations to the organization's board of directors for methods to improve services to active members. These active members include local governments and state agencies. Associate and professional members, who may receive services but may not vote on code changes, also are expected to provide input.

The Department of Community Affairs, as the lead State agency with the responsibility of administrating codes, is an active, dues-paying member of the organization. As a member, the Department votes on proposed code changes, and its staff may testify on the validity of specific changes during hearings the organization holds in reference to the codes twice a year.

Your position with the Department is the Planning Manager of the Codes and Standards Section of the Bureau of Public Safety Management. You serve as the designated Staff Director to the Board of Building Codes and Standards, which has statutory authority to update the specific editions of the State minimum building codes which are approved for use. Your programmatic responsibilities include providing technical assistance regarding the minimum codes, requirements for accessibility by the physically handicapped, coastal construction requirements, and the State plumbing code, as well as implementing a portion of the radon resistant construction program. You also represent both the Board and the Department during the organization's process of changing codes.

You also advise that the Department occasionally enters into contracts for services with the organization. In the past, the organization has been employed by the Department to provide training during the first coastal building inspectors' workshops and developed a "deemed to comply" manual for coastal construction. The organization is presently under contract to provide technical assistance during development of the radon protection program.

Section 112.313(7)(a), Florida Statutes, 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.

In addition, Section 112.313(3), Florida Statutes, provides:

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 of 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.

(c) Appointment to public office.

(d) Beginning public employment.

Pursuant to our reasoning in CEO 83-35 and CEO 81-40, we do not believe that you have a prohibited conflict of interest because of your position with the organization. Since you do not receive compensation for your services, you do not appear to have an employment or contractual relationship with the organization which could be in violation of Section 112.313(7)(a), Florida Statutes. See for example, CEO 89-12. You indicate that you are not an officer or director of the organization and you have not provided us with information which indicates that you may encounter situations where you could be considered to be selling the services of the organization to the Department, in violation of Section 112.313(3). Therefore, it does not appear that your service as chairman of the membership committee of this nonprofit organization would be in violation of the Code of Ethics for Public Officers and Employees.

Accordingly, we find that no prohibited conflict of interest would be created were you to remain a Planning Manager in the Bureau of Public Safety Management of the Department of Community Affairs while serving as chairman of the membership committee for the model code organization.