CEO 91-59 -- October 25, 1991

CONFLICT OF INTEREST

EMPLOYEE OF STATE BOARD OF INDEPENDENT COLLEGES

AND UNIVERSITIES CONSULTING WITH ENTITIES REGULATED

BY FORMER PUBLIC EMPLOYER

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

SUMMARY:

No prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where a Program Specialist with the State Board of Independent Colleges and Universities consults with trade schools regulated by his former employer, the State Board of Independent Postsecondary Vocational, Technical, Trade, and Business Schools. Of over 500 schools licensed by the employee's former agency, only nine are licensed by both Boards, and the employee would refrain from consulting with those schools. The employee is in no position to refer business to himself. Nor would he have access to his former employer's files or work areas solely because of the proximity of the two agencies' offices. As the employee will not be using information in his consulting business which is not generally available to the public, Section 112.313(8), Florida Statutes, is not implicated. Although Section 112.3141(1)(d) prohibits State agency employees from personally representing another person or entity for compensation before their former agency for a period of two years following vacation of their position, it is not applicable where the employee held his position with his former employer prior to July 1, 1989. The employee is cautioned against using his official position to solicit business or access information. CEO 87-83 is referenced.

QUESTION:

Would a prohibited conflict of interest exist were you, an employee of the State Board of Independent Colleges and Universities, to act as a private consultant to vocational schools on matters involving your former employer, the State Board of Independent Postsecondary Vocational, Technical, Trade and Business Schools?

Your question is answered in the negative, subject to the conditions noted below.

In your letter of inquiry you advise that you are employed by the State Board of Independent Colleges and Universities as a Program Specialist. Prior to being employed in this position, you were employed for over five years as a Program Specialist with the State Board of Independent Postsecondary Vocational, Technical, Trade and Business Schools. You advise that you would like to perform consulting work for private vocational schools during your off-duty hours. Primarily, you would assist new school applicants with their initial application for licensure. You also may hold one-day workshops to explain and answer questions about the rules, statutes, and procedures for submitting various requests and documentation to the Board for review. You advise that all of the Board's information is available to the public and that you would not use any information in your consulting business to which the general public does not also have access. You question whether your proposed consulting business would be a prohibited conflict of interest.

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

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 (1989).]

DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), Florida Statutes (1989).]

Additionally, Section 112.3141(1)(d), Florida Statutes, provides:

No agency employee shall personally represent another person or entity for compensation before the agency with whom he was employed for a period of 2 years following vacation of position, unless employed by another agency of state government.

The first of these provisions prohibits a public employee from having an employment or contractual relationship with a business entity or an agency which is doing business with, or is subject to the regulation of, the employee's agency. It also prohibits an employee from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which impedes the full and faithful discharge of his public duties.

Your agency, for purposes of the Code of Ethics, is the State Board of Independent Colleges and Universities. See CEO 87-83. You indicate that you would be consulting with entities which are subject to the regulation of your former agency, the State Board of Independent Postsecondary Vocational, Technical, Trade and Business Schools. There is no indication that the entities with whom you intend to consult are doing business with, or are regulated by, your current employer. Therefore, it does not appear that the first portion of Section 112.313(7)(a), Florida Statutes, would be violated by your proposed employment.

Nor does there appear to be a violation of the second portion of this statute. You indicate that all consulting will be done during your off-duty hours or on weekends. Additionally, as the two boards do not share information, work areas, or personnel, even though they are located on the same floor of a State building, there does not appear to be an impediment to the performance of your current duties. Nor does it appear that you would be in a position to make referrals to your consulting business. While you advise that out of approximately 500 schools, nine are regulated by both your current and former employer, you have indicated that you would refrain from performing consulting work for those schools which are regulated by both boards. With that condition, we do not consider your proposed consulting to pose a continuing or frequently recurring conflict between your private interests and the performance of your public duties or to be an impediment to the full and faithful discharge of your public duties.

Section 112.313(8), Florida Statutes, prohibits you from disclosing or using information not available to members of the general public and gained by reason of your official position for your personal gain or benefit or the personal gain or benefit of any other person or business entity. You have advised that you would not use any information in your consulting to which the general public does not also have access. Further, since the two agencies are separately staffed and operated, you do not have access to information just because of the proximity of your former agency to that of your present employer. In fact, you advise that you essentially are forbidden by the executive director of your former agency from entering their work area. Thus, we conclude that Section 112.313(8), Florida Statutes, would not be violated by your proposed consulting work.

Also referenced is Section 112.3141(1)(d), Florida Statutes. This statute prohibits you from personally representing another person or entity for compensation before the State Board of Independent Postsecondary Vocational, Technical, Trade, and Business Schools for two years after leaving your position. However, pursuant to Section 112.3141(1)(f), Florida Statutes, this provision is not applicable to a person employed by a State agency prior to July 1, 1989. As you have indicated that you were employed in your former position for 5 years and 8 months, it would appear that you are "grandfathered-in" for purposes of Section 112.3141(1)(d), Florida Statutes, and thus would not be prohibited from representing entities before your former agency.

Finally, we wish to call to your attention 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.

This provision requires a showing of corrupt intent, which is difficult to address in the context of an advisory opinion. However, we call it to your attention to advise you of its significance and to caution you against using your position with the State Board of Independent Colleges and Universities to aid you in your consulting work with persons or entities regulated by the State Board of Independent Postsecondary Vocational, Technical, Trade, and Business Schools. Use of your official position to solicit consulting business could constitute a violation of this provision, as could surreptitiously obtaining information from your former agency's office which would benefit you or your clients.

Accordingly, we find that no prohibited conflict of interest would be created where you provide consulting services to private vocational schools, as long as you refrain from performing any consulting work for the schools which are licensed by both the State Board of Independent Postsecondary Vocational, Technical, Trade, and Business Schools, and the State Board of Independent Colleges and Universities.