CEO 93-22 -- July 15, 1993
CONFLICT OF INTEREST
CITY PARKS DEPARTMENT EMPLOYEE RECEIVING
FEES FOR SHOWER COLUMNS HE DESIGNED
AS PART OF HIS PUBLIC DUTIES
To: (Name withheld at the person's request.)
SUMMARY:
Under the specific circumstances addressed by this opinion, no conflict of interest would be created if a city parks department employee were legally entitled to and were paid a designer's fee by the manufacturer of an outdoor shower column, which the city purchased from the manufacturer after its employee designed the column as a part of his public duties. The city and the manufacturer have concluded their contract, and the city is not interested in marketing the shower columns itself. Therefore, no conflict exists under Section 112.313(7)(a), Florida Statutes. Nor does any conflict exist under Section 112.313(8), Florida Statutes, because the employee, in disclosing the name of the manufacturer, would be disclosing public information. The Commission has neither the authority nor the jurisdiction to express an opinion as to whether the City or the employee are entitled to the designer's fee from the manufacturer. However, the Code of Ethics should not be interpreted to deprive a public employee of any legal rights he may have as long as the exercise of those rights do not impede, conflict, or otherwise interfere with the full and faithful discharge of his public duties. If such rights are established, Section 112.313(6), Florida Statutes, would not be violated by the employee's receipt of the designer's fee, because his actions would not be inconsistent with the proper performance of public duties.
However, Section 112.313(7)(a), Florida Statutes, would be violated where the employee receives a sales commission from the manufacturer for each potential buyer the employee refers to the manufacturer, when asked while performing his duties with the city. The City has directed the employee to disclose the name of the manufacturer to any interested person, and rewarding referrals the employee makes in his public capacity could create a conflict between his private interests and the performance of his public duties and impede the full and faithful discharge of his public duties. CEO's 89-10 and 89-1 are referenced.
QUESTION 1:
Would a prohibited conflict of interest be created were you, a City employee who designed an outdoor shower facility as a part of your public duties, to receive a designer's fee for shower columns sold by the manufacturer?
Question 1 is answered in the negative, limited to the specific circumstances addressed in this opinion.
In your letter of inquiry and in telephone discussions with our staff, we are advised that you are employed by the Parks Department for the City of Clearwater as the Nursery Superintendent. In that position, one of your assignments was to replace the dilapidated concrete outdoor shower facilities on Clearwater Beach. After researching the market to determine what was available and after considering fabrication of a shower column in-house using a variety of materials, you discovered a material that had all of the properties desired for an outdoor shower column in one of your trade publications. It was there, you relate, that you noticed an advertisement for decorative, plastic plant containers that were light-weight, durable, and guaranteed not to chip, crack, fade, or break for ten years. You contacted the plant container company in hopes that they could fabricate a shower column for the City. Company representatives explained the manufacturing process, and you began designing a column for use on the beach showers. After you completed your design work, which you indicate was performed on City time using City equipment, the City put the design and specifications out for bid to purchase 20 columns. A Miami company was awarded the contract, produced the columns, and was paid by the City.
That company now owns a mold that produces the plastic shower column you designed. The City has received inquiries from other persons and entities about the shower columns and where they can be purchased. You believe that you may be entitled to a designer's fee on each column the company sells and, you relate, the company has agreed to pay you a fee. However, you question whether you may accept a fee without violating the Code of Ethics for Public Officers and Employees.
The first provision of the Code of Ethics which is applicable to this situation is Section 112.313(7)(a), Florida Statutes, which 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.
The first part of this statute prohibits a public employee from having an employment or contractual relationship with a business entity which is doing business with his agency. The second part of Section 112.313(7)(a) prohibits a public 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.
Were the City and the company continuing to do business, the first portion of Section 112.313(7)(a), Florida Statutes, could be implicated because you would have a contractual relationship with a business entity which is doing business with the City. However, you have indicated that the contract between the manufacturer and the City has been completed, so it does not appear that the City is presently doing business with the Miami company. Therefore, there is no indication that your arrangement with the manufacturer to be paid a designer's fee would violate the first portion of Section 112.313(7)(a), Florida Statutes.
The second portion of Section 112.313(7)(a) prohibits a public 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. Here, you advise that the City has instructed you to let interested parties know who the shower column manufacturer is, since the City is not interested in competing with the manufacturer to sell outdoor shower columns. Further, since the City purchased from the manufacturer all of the shower columns it presently needs, you are not in the position of awarding additional City business to the manufacturer. Therefore, we do not believe that your acceptance of a designer's fee from the shower column manufacturer creates a conflict of interest under the second part of Section 112.313(7)(a), Florida Statutes, were you have an established legal right to the fee.
The Code of Ethics also 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. [Section 112.313(8), Florida Statutes (1991).]
This provision prohibits a public employee from disclosing or using information not available to 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. However, we are of the view that this statute is inapplicable to your situation because the information you would be disclosing--where the City obtained its shower columns--is public information which you readily disclose to any interested person. See CEO 89-10. Therefore, Section 112.313(8), Florida Statutes, would not be violated were you to receive a designer's fee from the shower column manufacturer.
Also implicated is 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. [Section 112.313(6), Florida Statutes (1991).]
For purposes of this provision, the term "corruptly" is defined as follows:
'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(9), Florida Statutes (1991).]
Section 112.313(6), Florida Statutes, prohibits a public employee from using or attempting to use his official position to secure a special privilege or benefit for himself or others, where his actions are undertaken with a wrongful intent for the purpose of obtaining some benefit resulting from actions which are inconsistent with the proper performance of public duties.
This Commission has neither the authority nor the expertise to advise you and the City as to who may be entitled to a designer's fee from the shower column manufacturer. Since the shower column was designed by you in your capacity as a City employee, on City time using City resources, the City may have a valid claim for some or all of any fee paid. However, if you have a cognizable right to the fee, the Code of Ethics should not be interpreted to deprive you of your legal rights as long as the exercise of those rights will not impede the full and faithful discharge of your public duties. See CEO 89-1. Thus, where you establish a right to a designer's fee, it would not be inconsistent with the proper performance of your public duties to be paid a fee, and no violation of Section 112.313(6), Florida Statutes, would exist. Of course, this assumes that you would not use City resources to privately promote the shower column or otherwise misuse your public position in any way.
Accordingly, we find that under the narrow situation addressed in this opinion, no prohibited conflict of interest would be created were you to be legally entitled to and to be paid a designer's fee by the manufacturer of an outdoor shower column which you designed as a part of your public responsibilities.
QUESTION 2:
Would a prohibited conflict of interest exist were you to receive a sales commission for referring potential buyers of the outdoor shower column to the manufacturer, based upon inquiries you receive in your position with the City?
Question 2 is answered in the affirmative.
You question whether it would be unethical for you to receive a sales commission for referring potential buyers to the outdoor shower column manufacturer, when asked while performing your duties as a City employee.
As discussed in Question 1, the second part of Section 112.313(7)(a), Florida Statutes, prohibits you from having an employment or contractual relationship which creates a continuing or frequently recurring conflict with your private interests and the performance of your public duties or which impedes the full and faithful discharge of your public duties. We are concerned that receiving a sales commission for referrals you make in your position with the City would impede the full and faithful discharge of your public duties. You have advised in your letter of inquiry that the City has instructed you to let interested persons know who the shower column manufacturer is. Thus, you are under a duty to disclose this public information as a public employee, whether or not you receive a sales commission. Further, if your motivation to disclose the name of the manufacturer is dependent upon a sales commission, we are concerned that your private interests may interfere with your public responsibilities and may also impede the full and faithful discharge of your public duties. Thus, it is our view that Section 112.313(7)(a), Florida Statutes, prohibits you from being paid a sales commission by the manufacturer for referring potential buyers to the manufacturer as a part of your public position.
You may wish to contact this Commission for further advice with respect to any arrangement between you and the manufacturer involving your off-duty hours.
Question 2 is answered accordingly.