CEO 79-19 -- March 22, 1979

CONFLICT OF INTEREST

COUNTY ENVIRONMENTAL CONTROL HEARING BOARD MEMBER PROVIDING ENGINEERING SERVICES FOR CLIENTS IN CONNECTION WITH ACTION PENDING BEFORE BOARD

To: Suzanne Hunter, Environmental Control Officer, Palm Beach County, West Palm Beach

Prepared by: Phil Claypool

SUMMARY:

Reference is made to CEO's 77-126 and 78-86. A prohibited conflict of interest under s. 112.313(7)(a), F. S. 1977, would be created were a county environmental control hearing board member to provide engineering services for a client in connection with action pending before the board for the enforcement of environmental laws.

QUESTION:

Would a prohibited conflict of interest be created were a county environmental control hearing board member to provide engineering services for a client in connection with action pending before the board for the enforcement of environmental laws?

Your question is answered in the affirmative.

In your letter of inquiry you advise that Mr. Donald Shepherd is an engineer who has been appointed to the Palm Beach County Environmental Control Hearing Board. The five members of this board are appointed by the county commission to hear appeals by persons aggrieved by actions or decisions of the county environmental control officer, to conduct hearings into the merits of alleged violations of the Palm Beach County Environmental Control Act, to issue injunctive orders against persons found in violation of that act, and to issue orders imposing civil penalties of up to $500 for each day of violation of the act. Section 10, Ch. 77-616, Laws of Florida. One of the members of the board is required to be an engineer by Ch. 77- 616, and that is the reason for Mr. Shepherd's appointment. You advise that, at the time of his appointment, Mr. Shepherd had several engineering clients, one of which has been sued and brought before the environmental control hearing board for violations regarding its sewage treatment plant. You further advise that Mr. Shepherd has been asked by this client to provide engineering services to reach a solution to the problems with the sewage treatment plant and to provide engineering advice to the client's legal counsel with respect to the enforcement action pending before the board.

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), F. S. 1977.]

We previously have advised that this provision does not prohibit a local official from representing a client before local agencies other than his own; such representations, however, must be disclosed by completing and filing a CE Form 2, Quarterly Client Disclosure, pursuant to s. 112.3145(4), F. S. See CEO's 76-13 and 79-7. The official's "agency" is determined through the definition of that term appearing in s. 112.312(2), F. S.

We also have advised that s. 112.313(7)(a) prohibits a public officer from representing a client before the public board of which he is a member. See CEO's 77-126 and 78-86. In CEO 77-126 we found that a city planning board member who was a registered architect could perform architectural services within the city, but that he was prohibited from representing clients before the planning board, as such representations jeopardize the officer's independence and impartiality, make use of the expertise that he has developed as a member of that board, and give the appearance of public office being used for private gain.

Here, the subject environmental control hearing board member would be assisting an attorney in the representation of his client before the board. This situation presents the same potential for conflict as the type of representation referenced in CEO's 77-126 and 78-86. The subject board member has the advantage of knowing intimately board procedures as well as the particular interests, views, and voting records of its members. In addition, his independence and impartiality clearly would be jeopardized, resulting in the appearance of his office being used for private gain.

One issue remains for discussion. Section 112.313(7)(b), F. S., provides:

This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance.

As previously mentioned, Ch. 77-616, Laws of Florida, provides that one member of the hearing board shall be an engineer. In CEO 79-2, we advised that s. 112.313(7)(a) would not be violated if a member of a community appearance board, who was required to be an architect in order to hold the position, represented clients before the board, as that board reviewed nearly all building permit applications and architects' plans and specifications within the city. Thus, were s. 112.313(7)(a) to prohibit the architect from representing clients before his board, he effectively would have been prohibited from practicing his profession within the city since the board reviewed nearly all the building permit applications and architects' plans and specifications. Here, however, s. 112.313(7)(a) would not have the effect of denying the subject hearing board member the opportunity to practice his profession within the county. The hearing board does not have the same general review power over the professional activities of an engineer that the community appearance board had regarding the work of an architect in CEO 79-2. There, almost all of his professional work necessarily would have been reviewed by the community appearance board; here, the hearing board acts only on specific complaints brought before it, and the subject board member's clients presumably do not appear before the board as a matter of course. Thus, although the subject board member's engineering practice is required by law, s. 112.313(7)(a) does not have the effect of prohibiting him from practicing in that profession; therefore, the exemption of paragraph (b) does not apply here.

Accordingly, we find that the Code of Ethics for Public Officers and Employees prohibits a member of a county environmental control hearing board from providing engineering services for a client in connection with an action pending before that board for the enforcement of the environmental laws.