CEO 96-11 -- May 1, 1996

 

CONFLICT OF INTEREST

 

COUNTY TANKS PROGRAM EMPLOYEE PERFORMING

ENVIRONMENTAL PROPERTY AUDITS

 

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 an environmental specialist employed in a county=s storage tanks program to perform environmental audits of property for buyers and lenders, other than property regulated by the program or property owned by persons or entities regulated by the program.  The employment or contractual relationships the employee would hold would not be with entities subject to the regulation of his public agency, and the program=s function and the employee=s private endeavor are sufficiently separate and distinct such that a continuing or frequently recurring conflict or impediment to duty would not be present.  CEO=s 93-13, 90-22, 89-37, and 89-23 are referenced.

 

QUESTION:

 

Would a prohibited conflict of interest be created were you, an environmental specialist working in a county=s storage tanks program, to perform environmental property audits?

 

Subject to the conditions and factual scenario set forth herein, your question is answered in the negative.

 

By your letter of inquiry and additional written and telephonic information provided to our staff, we are advised that  you are employed by Okaloosa County, serving as an environmental specialist in the County=s Storage Tanks Program.  Regarding your public position and the Program, your February 8, 1996 letter states in part:

 

I work under a Tanks Program Contract that the Board of County Commissioners has executed with the Florida Department of Environmental Protection (FDEP).  In this contract, the County has agreed to perform compliance inspections at regulated petroleum storage tank facilities within the boundaries of Okaloosa County.  In return the FDEP funds the entire program costs.  My position as an Environmental Specialist requires that I perform petroleum compliance inspections in Okaloosa County.

I perform regulatory compliance work for storage tanks regulated under 62-761, 762 & 769[,] Florida Administrative Codes [sic]. (F.A.C.).

The job description for my position is enclosed in the contract but I will attempt to further explain it here.  The program that I work under is called the Okaloosa County Storage Tanks Program which is a state contracted program on a yearly contract that began in this county in 1990.  I have been employed with Okaloosa County since March of 1995 as an Environmental Specialist working in Tanks Compliance.  I deal with many different people in this line of work.  Examples include: Tanks Facility owners/operators, consultants, contractors, and the general public.  I inspect tank facilities for compliance with F.A.C., review closure assessments, installations, and repairs all at [sic] storage tank facilities.  In addition, I also provide the public with any necessary assistance or information.

 

In addition, you provided the following information to our staff by telephone:

 

In your private work, you would work for lenders and buyers of property; you would not work for sellers.  Phase I and Phase II Environmental Property Audits involve checking property for various contaminants, including waste oil, PCB=s (i.e., from old electrical transformers), and benzine.  A Phase II audit differs from a Phase I audit in that it may involve more sampling, monitoring of groundwater flows, etc., and it can be triggered by, for example, the finding of a tank or drum on the property.  Your public position is located in the Okaloosa County Storage Tanks Program, which is under the County Environmental Services Division, which is under the County Public Works Director, who is under the County Manager, who is under the County Commission.  In your public capacity, you monitor gasoline stations, hospitals with fuel storage, and other fuel sites for vapor readings, leaks, insurance coverage, and fuel inventory reconciliation.  In your public capacity, you work under DEP regulations, as the County has no independent storage tank compliance scheme.  In working under the DEP regulations, the Storage Tanks Program can issue letters to site owners or operators advising them of deficiencies and stating that if compliance is not attained within a specified time the matter will be forwarded to DEP, but the Program cannot issue a citation or impose a fine for noncompliance.  Currently, no lenders in the County are owners or occupiers of sites subject to Program scrutiny.

 

Further, in your March 18 letter you state:

 

. . . I want to perform Environmental Property Audits to determine for a potential buyer or lending institution if a said piece of property is free from environmental concern.  A Phase I audit involves research on the property and surrounding properties using maps, property titles. . .determining such things as prior uses of the lands and a on site [sic] assessment.  A phase I does not involve any technical sampling or testing.  A phase II audit which I also want to perform involves actual testing of soils and water to determine if contamination does exist.

No license or registration is required.  Some banks do require that you are certified by either the National Association of Environmental Professional or the Florida branch, in National/Florida Certified Environmental Assessor [sic].  However, this is not required by banking laws and it is only a policy of certain banks.

My plan is to work only for lenders or buyers.  But, if it [is] approved by the Commission [on Ethics] I would like to work for a seller if indeed the site does not have tanks or if the seller does not own sites that are regulated by my public service job.

In my public capacity, I have access to databases and files.  However, these files and databases are accessible to the public also and we are required to assist anyone that comes into the office who would like help.

I plan to work as a sole proprietor and not in any way through/or connected to any corporation or consultant.  I would however request that I may enter into agreement, partnership, or employ assistance if need be.  I understand that they will be governed by the same guidelines rulings that the Commission imposes onto me.

The mission of the Okaloosa County Storage Tanks Program is to control releases of pollution by tanks by applying tanks laws 62-761 & 762, F.A.C. to regulated facilities.  This involves inspecting facilities, (Gas Stations, Generator Tank Sites, Bulk Product Facilities...) determining if the tanks are leaking, that system upgrades are performed on time, tank removals are properly performed...  As is written in the contract, any enforcement or fines are imposed by the Florida Department of Environmental Protection and not by Okaloosa County.  Once a site is out of compliance, we refer the facility to the Department.

My job is to perform inspections, send out letters to facility owners, type correspondence, assist facility owners/ public/ contractors/ consultants in performing their work as it relates to my regulatory capacity.  I review paperwork from owners and contractors/consultants that perform work for owners involving actions such as installation of tanks, removing tanks, and closure assessments.

One only has to be an owner of a tank or owner of a property that has tanks to be regulated by Tanks Program scrutiny.  We do not regulate anything dealing with contamination unless it was from a tank.

We merely identify [sic] if a site is actively leaking.  Many sites have contamination that are on the state=s funded EDI program.  We do determine that if a leak is capable of being detected if a site has a large amount [of] contamination that makes the monitor wells incapable of determining contamination.  We do not determine cleanup costs, or extents of contamination or anything else.

 

In addition, by telephone on March 25, 1996 you advised our staff that it is not within your public duty as an Okaloosa County employee to look for leaky tanks or tank contamination (and that your public superiors do not expect you to do so) while you are not working your regular hours for the County, and that you have no duty to and are not expected to notify the County of contamination you observe or become aware of in your private capacity, such as when performing your proposed private work.  In relation to this representation, you further advised our staff that only two or so sites per year are added to the total of known sites in the County, that prior to 1990 tank sites were identified and inventoried (for the most part pursuant to letters sent by the Department to commercial site owners or to owners of former commercial sites), that the few new sites that are added to the inventory result from complaints or letters from contractors or other persons, and that the Program does not conduct sweeps or searches for tank discovery.  Also, you advised our staff that the Astate=s funded EDI program@ means the State=s early detection incentive program, and applies to sites Asigned up prior to 1987 or 1988@ for which the State paid for cleanup; you relate that this list is static and that no new sites are added to this list.  You stated to our staff that you have public responsibility to refer sites or site owners to contractors for tank removal and cleanup, but that you do not have a public duty to refer them for Phase I audits or Phase II audits (the functions you seek to do privately), and that you would hold no employment or contractual relationship with such contractors.

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 or she 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 or her private interests and the performance of his or her public duties, or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]

 

We previously have not had occasion to consider the applicability of this statute to a storage tanks inspector, such as yourself, who proposes to conduct environmental property audits in a private capacity.  However, we have considered the statute=s applicability in somewhat similar contexts.  For example, in CEO 89-23 we determined that a prohibited conflict of interest would be created were an employee in the air pollution control section of the engineering division of a county public health unit to do business as an asbestos surveyor in the county, finding that the employee would have contractual relationships with entities regulated by his public agency.  See also CEO 90-22 (environmental specialist with county health department responsible for sewage system inspection performing soil analyses and site investigations for property owners and developers planning to install sewage disposal systems), and CEO 89-37 (county building official and inspector employed with firm regulated through building department), among others.  Our findings in each of these opinions are based upon whether or not the public employee would hold employment or a contractual relationship with a business entity subject to the regulation of his public agency, in violation of the first part of Section 112.313(7)(a).  Inasmuch as you have represented to us that you will not work for any persons or entities which are subject to the regulation of the Storage Tanks Program and that you will not evaluate in your private capacity any property that contains tanks or that is otherwise subject to the regulation of the Program, we find that your proposed private endeavor would not be violative of the first part of the statute.

The second part of Section 112.313(7)(a) would prohibit your holding any employment or any contractual relationship, regardless of whether or not the employment or contractual relationship is with a business entity or another agency which is subject to the regulation of your public agency, if the employment or contractual relationship would create a continuing or frequently recurring conflict between your private interests and the performance of your public duties of if it would impede the full and faithful discharge of your public duties.  In this regard, the second part of the statute requires an examination of your public employment and your proposed private endeavor to determine if the two are separate and distinct or if they coincide to create a situation which Atempts dishonor.@  See Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982).

We find that your public duties and those of your public agency would be sufficiently separate and distinct from your private pursuit such that no prohibited conflict would be created under the second part of Section 112.313(7)(a).[1]  Under your representations to us, the phase I and phase II audits which you would perform privately are not the same as the monitoring and compliance regulation that is performed by the Tanks Program for the DEP; you would not be working for persons or entities (or on properties) that are regulated by the Tanks Program; you would not have the ability in your public capacity to refer business to yourself because the cleanup or containment measures necessitated by a property=s being in the Tanks Program are different from the measures or services you perform privately (phase I and phase II audits); and because, as you have further represented, you would not hold employment or a contractual relationship with any contractors or service providers who would be capable of receiving referrals and performing remedial measures necessitated by a property=s being in the Tanks Program.[2]

Accordingly, subject to the limitations and conditions above, we find that a prohibited conflict of interest would not be created were you to perform environmental property audits.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 29, 1996, and RENDERED this 1st day of May, 1996.

 

 

__________________________

William J. Rish

Chairman

 


[1] Your situation is materially distinguishable from that present in CEO 93-13.  In that opinion, we found that a member of an airport authority had a conflict under the second part of Section 112.313(7)(a) where his corporation provided environmental assessments to a fixed-base operator leasing facilities from the authority.  Unlike the fixed-base operator in CEO 93-13 which was leasing its facilities from the airport authority upon which the member sat, the persons or entities with whom you would be dealing in your private capacity would not (as you represent to us) be subject to the regulation of or doing business with your public agency (the Tanks Program).  In addition, it is worth noting that a conflict under the first part of Section 112.313(7)(a) was not present in CEO 93-13 because the authority member=s corporation, rather than the member personally, held the contractual relationship with the fixed-base operator which was leasing facilities from the authority.

[2] Notwithstanding your representations that neither you (in your public capacity) nor the Tanks Program have an affirmative duty to seek out or search for new tank/contamination sites to be added to those already being dealt with by the Tanks Program, we find, in addition to the restrictions on your private pursuit stated above, that you must confine your clientele to buyers and lenders and that you must not represent sellers of property.  This is due to the natural interests of buyers and lenders to want to be made aware of contamination of property which they might buy or which they might utilize to secure an indebtedness, interests in accord with those of the public and the Tanks Program desiring revelation of contamination, but not necessarily in accord with the interests of a seller who might seek to rid himself of a contaminated property by concealing the contamination.