CEO 92-44 -- September 3, 1992

CONFLICT OF INTEREST

STATE UNIVERSITY CENTER EMPLOYEE WRITING TEXT

FOR CONTINUING PROFESSIONAL EDUCATION PROGRAM

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

SUMMARY:

No prohibited conflict of interest would be created were a Conference Coordinator at a State University Center for Professional Development to privately market as a take-home continuing professional education program for interior design professionals a textbook she has written on lighting design without using any public resources. So long as the Coordinator avoids using any public resources or any information unavailable to the general public to further that activity and so long as the Center continues not to provide take-home continuing education programs on lighting design for these professionals and the Coordinator plays no role in this decision, Section 112.313(7)(a), Florida Statutes, would not be violated. CEO 87-71 and CEO 90-75 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, a Conference Coordinator at a State University Center for Professional Development, to privately market as a take-home continuing professional education program for interior design professionals a textbook on lighting design you have written without using any public resources?

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

In your letter of inquiry you advise that you are employed as Conference Coordinator at the Florida State University Center for Professional Development, a non-union, non-tenured, administrative and professional staff position. In that capacity, you administer continuing education seminars for professional groups, hire faculty to teach, and make arrangements for meeting space, educational materials, food, audio/visual equipment, and advertisements for the seminars.

You advise that you came to this position with expertise and practice in consulting, writing, and publishing in the field of lighting design. With this experience, you advise, you have written a second book on your own time and using no services, equipment, or facilities of the University.

You also advise that a number of interior design professionals, who are required by law to take 20 hours of continuing education courses every two years for relicensure, are unable to travel to seminars, whether because they live out of state or because of their family situations. In your position with the University serving interior design professionals, you have been unable to get any faculty members to develop a video-taped, take-home continuing education program which might solve this need (it is not part of your responsibility as continuing education coordinator to seek faculty to write books). It occurred to you that such a textbook could be a take-home continuing education program for these professionals, and therefore you decided to apply to the Department of Professional Regulation for continuing education program approval for your text, which you have received.

You advise that you will market your text to interior designers in Florida, and eventually in other states. You also market the University programs you develop as part of your job to Florida interior designers, as well as to other professional groups, but you state that you would never mention your book to any designers on University time.

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.]

This provision prohibits you from having 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.

In previous opinions involving public employees who wish to engage in private employment providing services that are similar to those provided by their agencies, or that could be performed by their agencies, we have expressed concern that the employees potentially would be in a position to divert agency-related business to themselves for private gain, resulting in a continuing or frequently recurring conflict of interest or an impediment to the full and faithful discharge of public duties. See CEO 90-75 (county library personnel performing research for patrons for a fee on their own time during off-duty hours), and CEO 87-71 (State employee in Bureau of Archaeological Research contracting to provide professional services that could be provided by the Bureau). However, in these opinions we concluded that if the job opportunity for the employee is one which the agency cannot or will not perform, the employee would be allowed to accept it as long as the employee would have no part in the decision-making process of the agency for project acceptance or denial (which would give the appearance of misuse of position), did not use agency resources, and did not allow the private work to conflict with the employee's public duties.

In your situation, it does not appear that the take-home continuing education program you would be providing to interior design professionals is the same as that provided by your agency, which consists of continuing education seminars for these professionals. So long as the Center continues not to provide take-home continuing education programs on lighting design for these professionals and you play no role in this decision, the rationale of CEO 87-71 and CEO 90-75 would apply to your situation, allowing you to market your text as a take-home continuing education program. Further, although in one sense your program might be viewed as competing for continuing education credit hours with the seminars offered by the Center, it does not appear that your text would present any substantial conflict of interest with your public duty of offering seminars to these professionals. First, your text is intended to appeal to those who are unlikely to attend seminars presented by your agency. Secondly, the text concerns only one aspect of the profession--lighting design--and, finally, the professionals are required to have 20 hours of credit. Therefore, so long as you do not use the resources of your agency in marketing your continuing education text, we conclude that this activity would not present a continuing or frequently recurring conflict of interest or impede the full and faithful discharge of your public duties.

Section 112.313(7)(a) also prohibits you from having a contractual relationship with a business entity that is either doing business with or subject to the regulation of your agency. As interior design professionals are regulated by the Department of Professional Regulation rather than by the University, there is no conflict of interest with your public duties arising from the regulation of this group.

To the extent that a licensed interior design professional is a "business entity," Section 112.313(7)(a) would address your having a contractual relationship with that professional at the time he or she is doing business with the University. See CEO 87-71 (question 1). Therefore, on its face, this provision would prohibit you from selling your text to such a professional during the time period in which the professional has registered to take a continuing education seminar at the Center. However, we are of the opinion that the possibility that this might occur would not result in a violation of the Code of Ethics, because the Code also provides:

Construction.--It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, Florida Statutes.]

Having concluded earlier that your marketing of the textbook for continuing education to interior design professionals would not create a continuing conflict or impede the full and faithful discharge of your public duties, we are of the opinion that this provision of the Code, in effect, overrides the literal language of Section 112.313(7)(a). As we see no substantial conflict between your marketing your text privately and your marketing seminars through the Center to the same group of professionals, we do not see that any greater conflict would occur if the professional is attending a seminar at the same time he or she purchases your text.

Please note that public employees also are governed by the following prohibitions:

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. [Section 112.313(6), Florida Statutes.]

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.]

As with any public employee who undertakes a private business activity, we caution you to avoid using any public resources or any information not available to the general public to further that activity.

Accordingly, subject to the above limitations we find that no prohibited conflict of interest would be created were you to privately market as a take-home continuing professional education program for interior design professionals a textbook on lighting design you have written without using any public resources, while being employed as Conference Coordinator at the University Center for Professional Development.