CEO 93-26 -- September 2, 1993

CONFLICT OF INTEREST

SUSPENDED ELECTRIC AUTHORITY EMPLOYEE WORKING ON

AUTHORITY AND UNRELATED PROJECTS WHILE EMPLOYED

BY A CONTRACTOR DURING HIS SUSPENSION

FROM THE AUTHORITY

To: Neil W. McArthur, Jr., Assistant General Counsel (Jacksonville)

SUMMARY:

As suspension of a public employee from office is not permanent and embraces the assumption that he will resume his duties at a future date, the Code of Ethics remains applicable to him during his period of suspension. Temporary suspension represents not a termination of public duty but rather an interstice which requires that in order to insure that conduct violative of the Code of Ethics not accompany the employee upon his resumption of public duties, the Code remain applicable to him during the period of his suspension. CEO 76-150 is referenced.

Because the public employee is performing the same job tasks for his agency's contractor that he would be performing, if it were not for his suspension, as part of his public responsibilities, a prohibited conflict of interest in violation of Section 112.313(7)(a), Florida Statutes, exists. However, no prohibited conflict of interest is created by the employee's employment with his agency's contractor working on projects unrelated to his public agency because his public responsibilities would be unrelated to and removed from the contractor and its contract with his agency, and his employment with the contractor would not interfere with the full and faithful discharge of his public duties.

QUESTION 1:

Is a public employee, who is suspended without pay or is on leave without pay, but whose group insurance continues to be paid by his agency, still considered a public employee for purposes of the applicability of the Code of Ethics during the period of his suspension?

Your question is answered in the affirmative.

In your letter of inquiry and response to staff's questions, you advise that you are an Assistant General Counsel for the City of Jacksonville representing the Jacksonville Electric Authority ("J.E.A."). You advise that the J.E.A. is a legislatively created body politic and corporate as well as an independent agency of the City of Jacksonville. Therefore, it meets the definition of "agency" as contemplated by Section 112.312(2), Florida Statutes, you advise. You also advise that under J.E.A. charter provisions, J.E.A. employees are City employees.

You write that you seek this opinion on behalf of Terry R. Scott, Division Chief for the Southside Generating Station, who has the authority to terminate the employment of the employee who is the subject of this inquiry, subject to a due process hearing by the City's Civil Service Board. You advise that J.E.A. employees may be disciplined for cause by suspension without pay. They also may take leaves of absence from their employment without pay. You advise, however, that although no salary is paid during the employee's period of suspension or leave without pay, the J.E.A. continues to pay for the employee's group insurance coverage because the employment position is still filled.

You advise that an employee also may be terminated from employment for cause following the City's due process procedure or he may voluntarily either resign or abandon his position. Unless one of the two occurs, you write, an employee who is suspended without pay or is on leave without pay continues to be an employee of the J.E.A. for bookkeeping purposes and remains in that status until such time as the employment is terminated for cause, resignation, or abandonment.

You advise that a J.E.A. mechanical technician has been suspended without pay until September 30, 1993 because, although his job description requires him to have a valid Florida Drivers License, the employee's drivers license has been suspended by the Courts. You advise that if his drivers license has not been reinstated by September 30, the employee either will resign or be terminated pursuant to the appropriate procedures. However, your concern relates to the fact that this employee has become a salaried employee of a company which contracts with the J.E.A. for various work. You advise that in addition to performing mechanical maintenance for the private contractor on J.E.A. related matters, the employee also works on other area projects not involving the J.E.A.

As a JEA Mechanical Technician, the employee is required to perform various types of welding, machining, and mechanical work relating to the maintenance of equipment within the Power Generation Department. Our staff has also been advised by J.E.A. staff that the work that the employee performs for the contractor is always similar to the type of work that he performs in his public employment for the J.E.A., and in some cases is the same. We are advised that the contractor has contracted with the J.E.A. to do the same type of work that the employee would be performing, if it were not for his suspension, at the same job sites as part of his public duties. However, the employee is not and was not responsible for the contract between the J.E.A. and the contractor.

In CEO 76-150, an opinion concerning a suspended police chief selling to the city's water department, we noted:

As suspension from office is not permanent, but rather embraces the assumption that the suspended public employee or officer will resume his duties at a future date, a suspended public employee is in a position distinct from that of an ordinary citizen. The temporary suspension from office represents not a termination of public duty, but rather an interstice. . . For purposes of the Code of Ethics, interstices in ongoing employment do not exempt one from provisions of the Code of Ethics, for such exemption would afford opportunities for evasion of the law through manipulation of pay periods, termination dates, etc.

We then found that in order to keep within the spirit or intent of the Code of Ethics, "[d]uring interstices in public employment, the duty to uphold the public's trust in its officials is still mandatory to insure that conduct violative of the code will not accompany one upon resumption of public duties." We have seen nothing that would lead us to change our opinion.

Accordingly, we find that a public employee who is suspended without pay or is on leave without pay, but whose group insurance is paid by his agency, is a public employee for purposes of the applicability of the Code of Ethics to him.

QUESTION 2:

Would a prohibited conflict of interest be created were a suspended public employee to work on J.E.A. projects and unrelated projects while employed with a J.E.A. contractor during his period of suspension from the J.E.A.?

As long as the employee is not performing the same tasks for the contractor that he would be performing as part of his public duties, your question is answered in the negative.

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 the suspended employee from holding an employment or contractual relationship with a business entity which is either doing business with or is regulated by the J.E.A. and prohibits him from holding an employment or contractual relationship that would create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or would impede the full and faithful discharge of his public duties. However, the literal language of this prohibition is tempered by the following provision:

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.]

This provision mandates that the Code of Ethics not be construed to prohibit a public employee from engaging in private pursuits which do not interfere with the full and faithful discharge of his public duties.

Because one of the central purposes of Section 112.313(7)(a), Florida Statutes, is to prohibit those situations in which a public officer or employee obtains preferential treatment from, or awards public business to, a business with which he is associated, we have interpreted Section 112.316, Florida Statutes, to apply to situations in which an employee is not in a position to give advice or recommendations regarding any business transacted between his agency and a business entity. See CEO 76-10 and CEO 88-2. We also have applied it and found no conflict where the employee had no input into her agency's purchasing decision (CEO 82-76), the employee's public responsibilities were removed from the organization employing him and its contract with his agency (CEO 84-20), the employee played no role in the contracting process between his agency and his private employer and his public duties were unrelated to the private employer and its contract with his agency (CEO 84-24, CEO 84-99 and CEO 89-62), the employment did not interfere with the full and faithful discharge of the public employee's discharge of his public duties (CEO 86-24), the employee was not in a position in his public employment to influence referral of his agency's clients and he would not accept clients affiliated with the institution where he worked (CEO 86-30, CEO 87-34, and CEO 89-62), and the employee had no role in the licensure or inspection of his private employer (CEO 87-34 and CEO 89-62).

Accordingly, with respect to the employee's working on J.E.A. projects as part of his employment with the J.E.A. contractor, because his public responsibilities do not appear to be unrelated to and removed from the contractor and its contract with the J.E.A. (we are advised that he is performing the same job tasks for the contractor that he would be performing as part of his public responsibilities, if he were not suspended), we find that a prohibited conflict of interest appears to exist. However, we also find that no prohibited conflict of interest in violation of Section 112.313(7)(a), Florida Statutes, would exist were the employee to work solely on area projects unrelated to the J.E.A. because, under these circumstances, the employee's public responsibilities would be unrelated to and removed from the contractor and its contract with the J.E.A. and his outside employment with the contractor would not appear to interfere with the full and faithful discharge of his public duties.