CEO 93-25 -- July 15, 1993

CONFLICT OF INTEREST

CITY ENGINEERING DEPARTMENT EMPLOYEE

CONTRACTING WITH BUILDING SUBCONTRACTORS

REGULATED BY CITY BUILDING DEPARTMENT

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

SUMMARY:

No prohibited conflict of interest exists where a civil engineer with the city engineering department is privately engaged in the construction industry outside of the jurisdiction of the city and hires subcontractors who may be regulated by the city building department. Section 112.313(7)(a), Florida Statutes, prohibits a public employee from having a contractual relationship with a business entity which is regulated by his agency, but here the employee's agency, the engineering department, does not regulate building contractors and subcontractors. Additionally, the conditions imposed by the city upon the employee's outside activities ensure that no frequently recurring conflict or impediment to duty is created. CEO's 89-61, 90-17, and 91-28 are referenced.

QUESTION:

Would a prohibited conflict of interest exist where you, a City Civil Engineer, operate a construction company outside of the City and may contract with various subcontractors who are registered with the City Building Department?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry, you advise that you are employed as the Civil Engineer in the Engineering Department of the City of Port Orange. In this position, you relate, you have jurisdiction over site work contractors such as pavers and sewer and drainage companies. However, you have no influence or authority over contractors or subcontractors regulated by the Building Department and your position does not require interaction of any form with building subcontractors, you advise. We also assume, for purposes of rendering this opinion, that you have no involvement with plans or review of any plans or construction by contractors or subcontractors regulated by the Building Department.

You have obtained approval from your employer to operate a construction company during your off-duty hours. This approval is conditioned upon your not undertaking any construction or development activity within the City limits (except for your private residence limited to once every three years); not employing any developers, contractors, or business entities who are subject to the regulation of or do business with the City; limiting your private business activities to outside the hours of your normal workday and eschewing the use of any City resource in furtherance of your private business; and disclosing in advance each new building or development activity you propose to undertake to the City Manager and your department head, who must then approve of the project. This disclosure must include the names of the parties involved in any land transactions and all contractors, subcontractors, or other workers who will perform work on the project.

You advise that when you sought approval to build a single family residence for your brother in Orlando, your disclosure listed a DeLand roofing subcontractor who also is registered in the City of Port Orange. Because this subcontractor was registered with the City, you were directed to use another roofer not regulated by the City of Port Orange. In that situation, because the house you were going to build was approximately 75 miles away from Port Orange, it was not difficult to comply with this request and use another roofing company. However, you advise that the areas in which you would normally anticipate building would be much closer to Port Orange. Thus, you question whether a prohibited conflict of interest would be created in that situation, where you hire subcontractors who are licensed by or registered with the City Building Department.

The applicable provision of the Code of Ethics for Public Officers and Employees 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. , and who was not as well as the surrounding area.

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, or is regulated by, his agency. 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.

Examining the second half of Section 112.313(7)(a), Florida Statutes, we applaud you and the City for putting into place reasonable measures which, we believe, adequately ensure that your outside construction business will create neither a continuing or frequently recurring conflict between your private interests and the performance of your public duties, nor an impediment to the full and faithful discharge of your public duties. Of particular note is Condition 3, which reads as follows:

Any outside business activities must be conducted outside of the normal 8:00 a.m. to 5:00 p.m. workday. Phone calls, visits by contractors or others associated with your business activities, or use of City equipment, including but not limited to telephones, fax machines, blueprint machine and City vehicles in conjunction with your outside business activities is strictly forbidden.

Because of the high probability of public misperception on the use of City time, use of lunch hours or other types of "leave time" for outside business activities much be approved in advance by your immediate supervisor on the Department's "Leave Request" form. If you wish to adhere to a specified lunch hour, the requirement for approval in advance for the use of your lunch hour may be waived.

These conditions, if adhered to, help ensure that no conflict of interest or even appearance of conflict is created by your outside activities, and they also promote integrity and confidence of citizens in their municipal government. Additionally, they provide an objective standard to determine whether your actions are inconsistent with the proper performance of your public duties and, thus, violative of Section 112.313(6), Florida Statutes. Therefore, you are cautioned to follow them scrupulously for your own protection against allegations of misuse of position, as well as to uphold the principles contained in the Code of Ethics.

Turning now to the first part of Section 112.313(7)(a), Florida Statutes, you advise that the Port Orange Building Department regulates general contractors and subcontractors making improvements to or building residences or commercial buildings in the City. Your department, the Engineering Department, has no involvement in their regulation. The only connection between the two departments, you state, is that both are located on the same floor of City Hall.

In CEO 89-61, we opined that the first part of Section 112.313(7)(a), Florida Statutes, would not be violated where a city employee with the stormwater management division in the department of sanitary sewer had a contractual relationship with the parks and recreation department, an entirely separate department from his division. Applying the rationale of that opinion as well as CEO 90-17, CEO 91-28, and the opinions cited therein, you may contract with subcontractors who are regulated by the Building Department because your "agency," the Engineering Department, does not regulate these entities.

Finally, in your opinion request you ask, rhetorically, how any City employee could ever build or repair their own home without contravening Section 112.313(7)(a), Florida Statutes, where the City regulates building contractors and subcontractors. As noted above, if the City employee is employed in a department separate from that which regulates the contractors and subcontractors and has no involvement in their regulation, then there would not necessarily be a prohibited conflict of interest under the first part of Section 112.313(7)(a), Florida Statutes, because the employee would not have a contractual relationship with a business entity which is regulated by his agency. Where the City employees are employed in the department doing the regulation, Section 112.313(12)(j), Florida Statutes, may be applicable to waive a conflict. However, since no factual predicate has been established by you or any other individual seeking an opinion on this issue, we make reference to this provision solely for your personal edification.

Accordingly, under the facts of this opinion we find that no prohibited conflict is created where you, a city engineering department employee, operate a construction business outside of the city limits during your off-duty hours and hire subcontractors who are regulated by the city building department.