CEO 90-29 -- April 26, 1990

CONFLICT OF INTEREST

D.H.R.S. ENVIRONMENTAL HEALTH SPECIALIST PERFORMING

VEGETATION SURVEYS FOR PROPOSED DEVELOPMENT PROJECTS

To: Lucian Bledsoe, Labor Relations Specialist, D.H.R.S., District 11 (Miami)

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were an Environmental Health Specialist within a County Public Health Unit to be employed privately to perform vegetation surveys for proposed development projects, as the County Public Health Unit regulates developers through the septic tank permitting process. CEO 89-23 and CEO 86-62 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were an Environmental Health Specialist with the Department of Health and Rehabilitative Services to perform vegetation surveys for proposed developments in his private capacity?

Under the circumstances described, your question is answered in the affirmative.

In your letter of inquiry, you advise that James R. Fulcher is employed by the Department of Health and Rehabilitative Services, District 11, as an Environmental Health Specialist. His duties in that position are to inspect restaurants, trailer parks, and public pools for licensing and certification.

By telephone, the subject employee advised our staff that he works in the Environmental Health Division of the Monroe County Public Health Unit. Also in this division are approximately three employees who are responsible for septic tank inspections and permits. Almost every building in Monroe County, which is situated on an several islands in the Florida Keys, has a septic tank. The exceptions would be older homes or buildings with cess pits or pools, or developments which build their own sewage systems. Due to the limited amount of land on the island, however, there is little space for most developments to use any sewage disposal system other than a septic tank. The majority of the septic tank inspections and permits by the Monroe County Public Health Unit, however, are for residential properties.

In order to construct a septic tank, an applicant must fill out an application with the Health Unit, pay a $102 fee, and submit two sets of building plans. One of the Health Unit employees must conduct a survey (to ensure that the tank meets set back requirements) and perform a percolation test. A building permit will not be given to the contractor by the County without a septic tank permit. Once the septic tank is installed, the contractor will call the Health Unit for an inspection to see if it was done properly.

The subject employee wishes to perform vegetation surveys in a private capacity for proposed development projects. He advises that the County's Building Code and Comprehensive Land Use Plan require the issuance of a vegetation survey for a building permit. The purpose of these surveys is to identify endangered plants and trees which are protected by the Comprehensive Land Use Plan and to ensure that they are protected during the building process. Once the vegetation survey is satisfactorily completed, however, the relationship with the developer is terminated.

The employee generally has no direct involvement with septic tank inspections or permits, which are conducted by three other employees. These employees, however, work in the same office and on infrequent occasions have asked the subject employee to assist them in the septic tank permitting process.

In regard to your question, 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.

It would appear that his agency, the Monroe County Public Health Unit, regulates developers through the septic tank process. It also would appear that the employee works in close proximity and may have an influence on the employees conducting inspections. See CEO 86-62. In addition, the people with whom the employee would be contracting would be exclusively those engaging in new construction, which always will require the involvement of the Monroe County Public Health Unit in the regulatory septic tank process. We also note that the employee works in close proximity with the employees conducting septic tank inspections, and has personally participated in the septic tank permitting process on occasion. Therefore, we are of the opinion that Section 112.313(7)(a), Florida Statutes, would be violated were the employee to continue conducting vegetation surveys for developers. See CEO 89-23.

Accordingly, we find that a prohibited conflict of interest would be created were an Environmental Health Specialist in a County Public Health Unit to conduct vegetation surveys.