CEO 84-14 -- March 8, 1984

CONFLICT OF INTEREST

WATER MANAGEMENT DISTRICT EMPLOYEE PURCHASING EQUIPMENT FROM BUSINESS HAVING PERMITS FROM DISTRICT

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

SUMMARY:

No prohibited conflict of interest was created where an employee of a water management district in the position of operations and maintenance superintendent for a field station purchased a used tractor and mowers from a large farming operation which has a number of permits issued by the district. Although the joint venture which operates the farm is subject to the regulation of the district, the employee's responsibilities are sufficiently divorced from the agency's regulatory activities that his contractual relationship with the joint venture would not interfere with the full and faithful discharge of his public duties. Therefore, Section 112.313(7), Florida Statutes, would not be violated when interpreted together with Section 112.316, Florida Statutes.

QUESTION:

Was a prohibited conflict of interest created where an employee of the St. Johns River Water Management District in the position of Operations and Maintenance Superintendent for a field station purchased a used tractor and mowers from a large farming operation which has a number of permits issued by the District?

Your question is answered in the negative.

In your letter of inquiry you advise that .... is employed by the St. Johns River Water Management District as Operations and Maintenance Superintendent for the District's Melbourne Station. In that position, he is responsible for supervising aquatic weed control specialists in spraying for the control of aquatic vegetation, for supervising mechanical work on buildings, structures, machinery and equipment associated with the field station, and for conducting surveys of lakes, streams and related waterways. He is one of three Operations and Maintenance Superintendents within the District's Department of Property Acquisition and Operations, which is one of four departments within the District. You advise that the District's Department of Resource Management generally is responsible for the regulatory functions of the District.

You also advise that the subject employee has purchased a used tractor and mowers from a joint venture which runs a large farming operation within the District. There is some question about the precise amount paid for the equipment and about whether the equipment was in operating condition. You advise that the joint venture has a number of permits from the District and is in the process of requesting additional consumptive use permits from the District.

Finally, you advise that a former employee of the joint venture complained to the District about certain activities of the joint venture and about certain actions by the subject employee. These allegations were investigated by the District and by the Governor's Inspector General, who recommended that the District seek this opinion regarding the conduct of its employee.

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 (1983).]

This provision prohibits a public employee from having any contractual relationship with a business entity which is subject to the regulation of his agency. In our view, the purchase of equipment constitutes a contractual relationship. In addition, we have advised in CEO 78-59 that the authority granted Water Management Districts under Chapter 373, Florida Statutes, concerning the use of water within the Districts is a regulatory power.

However, we also have advised that an employee may be employed by or have a contractual relationship with a business entity regulated by his agency if the employee's responsibilities are sufficiently divorced from the agency's regulatory activities that his employment would not interfere with the full and faithful discharge of his public duties. See CEO 83-84 and CEO 77-147, which interpret Section 112.313(7)(a) in light of Section 112.316, Florida Statutes. Both the duties of the subject employee as set out in his position description and his position in the District's Department of Property Acquisition and Operations, which is not involved in the regulatory contacts between the District and the joint venture, indicate that the subject employee has no responsibilities over the permitting or enforcement activities of the District. Therefore, we conclude that the rationale of these two opinions also applies here.

Accordingly, we find that no prohibited conflict of interest was created where the subject employee purchased a used tractor and mowers from the joint venture, despite the fact that the District has issued a number of permits to the joint venture. We note that the original complaint filed with the District contained allegations that the employee had misused his public position and used information not available to the general public for the benefit of the joint venture. Because of conflicts in the evidence presented to the District and a lack of evidence regarding some issues, we are unable to resolve these questions in an advisory opinion, in which we are required to apply the provisions of the Code of Ethics to the facts submitted to us without the opportunity to investigate or to weigh the evidence. We do conclude, however, that in the absence of a misuse of public position on the part of the employee or an agreement that the employee's duties would be influenced, the mere purchase of equipment from the joint venture did not violate the Code of Ethics.