CEO 93-34 -- December 2, 1993

CONFLICT OF INTEREST

COUNTY CODE ENFORCEMENT DIRECTOR

WORKING PART-TIME FOR FOOD SERVICE ESTABLISHMENT

AT FLEA MARKET IN COUNTY

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

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a county code enforcement division director to be employed by a food service establishment operating at a flea market located within the county, where the code enforcement division does not generally inspect restaurants and other food service providers. CEO 85-16 is referenced.

QUESTION:

Would a prohibited conflict of interest be created were the director of a county's code enforcement division to be employed by an entity which operates food service facilities at a flea market within the county, where the flea market could be the subject of complaints which would be inspected by the division?

Your question is answered in the negative, under the specific circumstances presented.

In your letter of inquiry and in subsequent correspondence with our staff, we are advised that . . . . is employed by Brevard County as the Director of the Code Enforcement Division within the Environmental Services Group. As Division Director, he supervises approximately 20 code enforcement officers assigned to different areas of the County. Also under his direct supervision are those employees who investigate complaints involving violations of the County's codes and ordinances.

In addition to his public duties, the Division Director works on the weekends at an area flea market, where he is employed in food service. You relate that he does not have any dealings with the administrative workings of the flea market; nor does he hold any financial interest in the land or the business. His main function is to see that the food service facilities are adequately staffed and supplied. You also relate that he has nothing to do with the ordering of supplies or food in his private capacity, and he does not have any control over health inspections or regulations in his public capacity. You question whether a prohibited conflict of interest is created as a result of the Division Director's part-time employment at the flea market, which conceivably could be the subject of a complaint alleging violation of a County code or ordinance, although you indicate that no violations have occurred there to date, to your knowledge.

The Code of Ethics 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 (1991).]

The first part of this statute prohibits a public employee from having an employment or contractual relationship with a business entity which is either doing business with, or regulated by, 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 public duties, or which impedes the full and faithful discharge of public duties.

We believe that the rationale of CEO 85-16 is applicable to the situation. There, an environmental health specialist employed with the environmental health division of a county public health unit sought part-time work in a children's home. Although his division inspected children's homes, we concluded that his employment would be permitted under Section 112.316, Florida Statutes, which 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 of the county, city, or other political subdivision of the state involved.

There, we found it significant that the employee was not responsible for inspecting or regulating child care centers or for supervising the inspectors responsible for child care and group facility inspections. Additionally, we noted that the employee's only interest in the home was as a part-time employee, and not as an owner or managerial employee. Finally, we noted the great number and diversity of activities inspected and regulated by the environmental health division and concluded that precluding all employees of the division from outside employment with any entity subject to inspection by the division could have the effect of virtually prohibiting outside employment altogether, a result not contemplated by the Code of Ethics. Therefore, we concluded that the situation did not present a prohibited conflict of interest.

Here, we note that the Code Enforcement Division does not actually inspect restaurants and other food service providers; different divisions within the Community Services Group, an entirely separate department, are responsible for the inspections of these facilities and the enforcement of laws governing food service. Additionally, while there evidently are some overlapping responsibilities among the Code Enforcement Division and other divisions and departments within the County, as well as a shared computer software program for tracking complaints of violations, it does not appear to us that the nature of the situation, viewed in its entirety, is one which would tempt the Division Director to place his private interests in working for the flea market food vendors above his public responsibilities as Director of the Division of Code Enforcement. Also, as in CEO 85-16, the Division Director's only interest in the flea market's food service operation is as a part-time employee, and it does not appear that he has an ownership interest or managerial position with the endeavor. Finally, just as in CEO 85-16, because of the great number and diversity of activities inspected and regulated by the Code Enforcement Division, precluding all employees of the Division from outside employment with any entity subject to regulation by the Division would have the unduly restrictive result of prohibiting almost all outside employment by Division employees, which we do not believe to be appropriate under the circumstances.

As in CEO 85-16, we would caution the Division Director to scrupulously avoid any suggestion that he has misused his public position to secure a special privilege or benefit for himself or another. Any use of position to "squelch" or otherwise affect the investigation and/or disposition of an alleged violation involving the flea market could constitute a violation of Section 112.313(6), Florida Statutes, and the Director would be well-advised to avoid any situation which might suggest even the appearance of impropriety with regard to his public position and the flea market.

Accordingly, we find under the circumstances presented that no prohibited conflict of interest would be created where the County's Director of the Code Enforcement Division is employed by a food service establishment at a flea market located within the County.