CEO 89-26--June 14, 1989

CONFLICT OF INTEREST

EMPLOYEE OF JUDICIAL CIRCUIT MARKETING ENHANCEMENTS TO SOFTWARE DEVELOPED AS PART OF HIS PUBLIC POSITION

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

SUMMARY:

An employee of a judicial circuit who was employed to supervise the development of a computer software program used by the circuit may not participate in a private business which proposes to market and develop enhancements to the program. The program is available to other judicial circuits in Florida but is not available to the general public, and the private entity could gain access to the software only through the employee. The employee therefore would violate Section 112.313(8), Florida Statutes, if he were to use his public position to give the private entity access to the software program. In addition, the employee could violate Section 112.313(7)(a), Florida Statutes, were he to privately benefit from developing enhancements when he is being publicly employed and compensated for the same purpose. CEO's 89-13; 83-87; 82-28; 81-54 and 80-21 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were the Judicial Information System Director of the Seventeenth Judicial Circuit to participate in a privately-owned business which markets and develops enhancements to a software program which is used by the Circuit and which he helped develop as a public employee?

Your question is answered in the affirmative.

In your letter of inquiry, you advise that . . . is employed by the Seventeenth Judicial Circuit as Judicial Information System (JIS) Director. His responsibilities include participation in and supervision of the development of application software for use in judicial administration. Such software is available to other judicial circuits upon request at no charge, you write.

You also advise that the JIS Director has been invited to participate on an equity basis in an entity which would act as a consultant to other judicial circuits and which would develop and market enhancements to software developed under the Director's supervision in the Seventeenth Circuit. The proposed business entity would not act as consultant to the Seventeenth Circuit, and it is not anticipated that the Director's involvement with the entity would conflict with his working hours as JIS Director. It is anticipated that he would participate in the development and marketing of enhancements and occasionally act as a consultant to other judicial circuits. You state that you do not believe that he would disclose or use information proprietary to the Seventeenth Circuit and not available to the public because the basic software system is available to all judicial circuits at no charge. However, it is anticipated that the new entity would gain access to the basic software system through the Director and that other private entities would not have direct access to the system unless it were provided to them by a judicial circuit other than the Seventeenth Circuit.

In past opinions, we have determined that Section 112.313(8), Florida Statutes, prohibits a public official or employee from using a program designed as part of his job in private consulting work. CEO 89-13, CEO 83-87, CEO 82-28, CEO 81-54, and CEO 80-21. Section 112.313(8), Florida Statutes, provides:

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.

You state that the program which the company wishes to enhance is available only to other judicial circuits. The proposed entity will gain access to the software program through the JIS Director. As other private entities could not gain access to the program unless through a judicial circuit other than the Seventeenth, it is unlikely that the Director would give a competitor access to this information. Therefore, we are of the opinion that this program does not constitute information available to the public at large, and the only method by which the proposed entity could gain access to the software is through use of the Director's official position. Such use of position is specifically prohibited by Section 112.313(8), Florida Statutes.

We note that Section 112.313(7)(a), Florida Statutes, might also be applicable if the Director's duties include developing enhancements to or improving the software used in his judicial circuit. Section 112.313(7)(a) 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.

If this is the case, the Director's interests in developing and selling enhancements on behalf of his private business would create a continuing and frequently recurring conflict between his private interests and public duties, as well as impeding the full and faithful discharge of his public duties.

You advise that you are aware of another entity currently doing business in Florida which provides enhancements to software programs developed by a school district. Pursuant to Section 112.322(3)(a), Florida Statutes, you do not have standing to request an opinion on the application of the Code of Ethics to any action which may have been taken by a public official or employee in regard to that business. We therefore are unable to address this issue.

Accordingly, we find that Section 112.313(8), Florida Statutes, would be violated were the Judicial Information System Director of the Seventeenth Judicial Circuit to act as an owner of and a consultant in a business which markets enhancements to a software program developed by him in his judicial employment and used by judicial circuits, but which is not available to the general public.