CEO 90-50 -- July 27, 1990

CONFLICT OF INTEREST

GAME AND FRESH WATER FISH COMMISSIONERS PARTICIPATING IN ALLIGATOR MANAGEMENT PROGRAM REGULATED BY COMMISSION

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

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a Florida Game and Fresh Water Fish Commissioner personally to participate in a program allowing him to harvest alligators, hatchlings, and eggs from his privately owned land, as long as he is not engaging in the business of selling alligators, their parts, or products. The Commissioner would be considered to "personally" participate in the program were he, a relative or his employee to harvest alligators for population control, and where neither he nor the relative or employee participated in a business of selling the alligator skins or products. If the Commissioner were to contract with businesses to allow them to harvest alligators or eggs from his land, Section 112.313(7)(a) would be violated as the Commissioner would have a contractual relationship with a business regulated by the Commission. In addition, use of the Commissioner's position to influence discretionary or enforcement decisions by the Commission's staff in relation to the program could be determined to constitute a violation of Section 112.313(6), Florida Statutes. CEO 87-37, CEO 87-73, and CEO 85-1 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were a Florida Game and Fresh Water Fish Commissioner to harvest alligators from his privately owned land, where the Commission on which he serves makes and enforces the rules and procedures governing such activity?

In your letter of inquiry, you advise that the Florida Game and Fresh Water Fish Commission has established a comprehensive alligator management program. The program permits, pursuant to the terms specified in Rule 39-25.032, F.A.C., private landowners or lessees of private lands to harvest alligators from these lands and sell the meat, hides, and other parts of the alligators to the private sector. The program also involves harvesting alligator eggs and hatchlings.

The Commission's Division of Wildlife is responsible for implementing the program through application reviews, administration of permitting and monitoring procedures, and program coordination with permittees. The Commission's Division of Law Enforcement enforces the program regulations, and its officers may issue criminal citations to violators.

You advise that several of the Commissioners would like to participate as private landowners in the private alligator management program. Any proceeds the Commissioners received from selling alligators or their parts would be donated to the Florida Wildlife Foundation or a similar nonprofit group of their choice. The primary motivation of the Commissioners is to control the alligator population on their lands, not to benefit financially from selling alligator products. You wish to know if the Commissioners could participate in the program without violating any provision of the Code of Ethics.

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.

Section 112.313(7)(a) prohibits certain contractual and employment relationships. If the Commissioners personally harvest the alligators, then they do not meet the threshold requirement of this prohibition, as they would not have a contractual or employment relationship which Section 112.313(7)(a) could prohibit. In a telephone conversation with our staff, you indicated that the Commissioners do not intend to create or engage in a private business of selling alligator hides or parts even though hides of harvested alligators probably could be sold rather than wasted. Rather, you stated, they merely wish to participate in the program in order to control and manage the alligator population on their private land. Therefore, unless Commissioners engage in a business of selling alligator parts, we do not believe that by harvesting the alligators themselves they would have a contractual relationship with a business entity which is subject to the regulation of their agency. See CEO 87-73 and CEO 85-1. Their donations to charity of the proceeds of any sales for harvested alligators would be evidence of their intent not to engage in such a business. Similarly, allowing businesses to harvest alligators on a Commissioner's land free of charge would not violate this section as the Commissioner would not have a contractual or employment relationship with the businesses.

If the Commissioners contract to have the alligators, eggs, or hatchlings harvested by individuals other than themselves, however, it would appear that they would have a contractual relationship with businesses subject to the regulation of their agency. We note that a person cannot harvest alligators or their eggs without having obtained a license from the Commission pursuant to Section 372.6673, Florida Statutes. We also note that methods for killing and skinning alligators and for harvesting eggs and hatchlings are regulated by the Commission. See Rule 39-25.032, Florida Administrative Code. The Commission also regulates the sale and validation of alligator hides and the operation of alligator farms. It would appear that those businesses which could contract to harvest alligators or eggs, or which would lease the rights to harvest alligators or eggs from private landowners such as the Commissioners, would be subject to the regulation of the Commission. Section 112.313(7)(a) therefore would prohibit a Commissioner from contracting with these businesses. See CEO 85-1, CEO 87-37, and CEO 87-73.

You have asked if a commission could "personally" participate in the program by having a relative or an employee of the Commissioner to harvest the alligators. We are of the opinion under the unique circumstances presented here that a Commissioner also could use an individual who is not engaged in a business related to alligators or alligator products to harvest alligators on his land without violating the Code of Ethics. We reach this conclusion for several reasons. First, since harvesting alligators may require a certain amount of expertise, to require a Commissioner to personally conduct the harvesting might be impractical and dangerous and could have the effect of preventing a Commissioner from participating in the program. Secondly, since the relative or employee would be disposing of harvested alligators and products according to the direction of the Commissioner, the regulatory power of the Commission over the individual would be the same as it would be over the Commissioner if he were harvesting the alligators himself. Thirdly, we note that such a person, although trained to harvest alligators, could not participate in a business related to alligator harvesting. Under such circumstances, we would not view the relative or employee as constituting a "business entity", but as an extension of the Commissioner's personal participation in the program. Therefore, there would be no contract with a "business entity" so as to fall within the prohibition of Section 112.313(7)(a).

We must warn the Commissioners, however, that to avoid a violation of Section 112.313(7)(a) in selling the alligators or hides, they must be careful not to contract with any business subject to the regulation of the Commission. The donation by a Commissioner of alligators to a regulated business would not constitute a contractual relationship in violation of this Section. In addition, any use of public position by a Commissioner to influence the determination that he qualifies for participation in the program, the decision of the number of alligators he must harvest, or penalties for violating the rules or standards of the program could be determined to be in violation of Section 112.313(6), Florida Statutes, which 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 s. 104.31.

Accordingly, we find that a prohibited conflict of interest would not be created were a Game and Fresh Water Fish Commissioner to personally participate in a program regulating the harvesting of alligators from his private lands, as long as he does not engage in or contract with a business selling alligators, their parts, or products. A prohibited conflict would be created if the Commissioner were to contract with private businesses to allow them to harvest alligators from his land, or if he were to use his position to influence decisions by the Commission regarding participation in the program or penalties for violating rules and standards of the program.