CEO 91-11 -- March 7, 1991

CONFLICT OF INTEREST

SPECIAL TAXING DISTRICT COMMISSIONER EMPLOYING PERSON WHO ALSO IS EMPLOYED BY CONSTULTING FIRM DOING BUSINESS WITH DISTRICT

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

SUMMARY:

No prohibited conflict of interest would be created were the engineering and contracting firm of which a special taxing district commissioner is an owner and officer to employ on a part-time basis an engineer who also is employed on a part-time basis by a consulting engineering firm that has contracted to provide services to the district. The commissioner's firm would not be selling any services to the District, which would be prohibited under Section 112.313(3), Florida Statutes. Nor would the relationship be prohibited by Section 112.313(7)(a), Florida Statutes, as the commissioner would not have any employment or contractual relationship with a business entity that is doing business with the district, as his firm will be paying the part-time employee at the market rate, as there is no relationship between the work of the two firms, and as his relationship to the part-time employee would be that of superior to subordinate.

QUESTION:

Would a prohibited conflict of interest be created were the engineering and contracting firm of which you are an owner and officer to employ on a part-time basis an engineer who also is employed on a part-time basis by a consulting engineering firm that has contracted to provide services to the special taxing district which you serve as an elected commissioner?

Your question is answered in the negative.

Through your letter of inquiry and subsequent correspondence with our staff, you have advised that you serve as an elected Commissioner of the Sebastian Inlet Tax District, which was established to provide and maintain safe navigation between the Intercoastal Waterway and the Atlantic Ocean through the Sebastian Inlet. You also advise that you are an owner and officer of an engineering and contracting firm.

You question whether your firm may hire as a part-time employee for two or three days per week a professional engineer who also is employed on a part-time basis by an engineering firm which has a three-year contract with the District to provide civil and coastal engineering consulting services. The employee is a brother of a principal in the consulting firm, but is not an owner or officer of the consulting firm. You advise that there is no relationship between the work that your firm performs and the work handled by the consulting firm, and that the employee would be compensated at the market rate.

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 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.

[Section 112.313(3), Florida Statutes.]

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.]

Section 112.313(3), Florida Statutes, prohibits you from acting in your public capacity to purchase services from the firm of which you are an owner and officer and prohibits you from acting in a private capacity to sell services to the District. However, your firm is not selling any services to the District.

The first part of Section 112.313(7)(a), Florida Statutes, prohibits you from having any employment or contractual relationship with the consulting firm while it is doing business with the District. See, for example, CEO 87-7 (erosion prevention district commissioner prohibited from providing consulting services to engineering firm doing business with district). However, under the circumstances presented you do not have such a relationship with the consulting firm. Nor do we consider that your firm's hiring an individual who also works for the consulting firm creates an employment or contractual relationship between you and any business entity that is doing business with the District.

The second part of Section 112.313(7)(a) prohibits you from having employment or a contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of your public duties. For purposes of the Code of Ethics, the term "conflict of interest" is defined to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." Section 112.312(6), Florida Statutes.

In the situation presented here, we would be concerned either if it appeared that you or your firm would benefit in some manner from the business transacted between the District and the consulting firm or if regard for your private interests and those of your firm would tend to lead to disregard of your public duties in matters involving the consulting firm. As you have indicated that your firm will be paying the part-time employee at the market rate for his work, we do not see that you or your firm would be in a position to benefit from the business transacted between the District and the consulting firm. Given the fact that there is no relationship between the work of the two firms and the fact that, as employer, your relationship to the part-time employee is that of superior to subordinate, we are not of the opinion that your judgment as a District Commissioner regarding the consulting firm's work or contract would tend to be influenced by your subordinate's working for the consulting firm.

Accordingly, we find that no prohibited conflict of interest would be created were the engineering and contracting firm of which you are an owner and officer to employ on a part-time basis an engineer who also is employed on a part-time basis by a consulting engineering firm that has contracted to provide services to the special taxing district which you serve as an elected commissioner.