CEO 96-26 -- October 10, 1996

CONFLICT OF INTEREST

COUNTY PUBLIC HEALTH UNIT EMPLOYEE PARTICIPATING IN

MULTI-LEVEL MARKETING PROGRAM SELLING AIR PURIFICATION SYSTEMS

To: Frank Rodriguez, Sanitation and Safety Supervisor, Bay County Public Health Unit (Panama City Beach)

SUMMARY:

An employee of the environmental health services section of a county public health unit is prohibited by Section 112.313(7)(a), Florida Statutes, from participating as a dealer in a multi-level marketing program selling air purification systems when his public duties indirectly include the regulation of indoor air quality. However, he would not be prohibited from selling air purification systems and enlisting others to become dealers outside the county where he is employed, as long as those individuals or entities do not have interests within the county regulated by his agency. CEO 90-22 and CEO 89-23 are referenced.

QUESTION:

Is a prohibited conflict of interest created where you, a sanitation and safety supervisor in the environmental health services section of a county public health unit, participate in a multi-level marketing program selling air purification systems to individuals who are not directly regulated by your agency?

Your question is answered in the affirmative for sales within Bay County, but in the negative if you limit your activities to outside the county to persons or business entities having no interests within Bay County regulated by your agency.

In your letter of inquiry and through supplemental information you provided to our staff, we are advised that you are employed by the Bay County Public Health Unit as a Sanitation and Safety Supervisor in its Environmental Health Services Section. In that position, you supervise a staff of Sanitation and Safety Specialists in the program areas of Food Service, Institutions, Bio-Hazardous Waste, Swimming Pools, Suntan Beds, and complaints. In addition to the day-to-day supervision of these programs, your position description also indicates that you are responsible for consulting with and advising persons in the professional disciplines as well as contractors, public officials, private citizens, homeowners, operators, and the general public about the compliance requirements of public health laws, regulations, and ordinances.

In addition to your duties with the Public Health Unit, you relate that you and your wife are independent dealers for a private company which makes and sells air purification systems through a multi-level marketing program. Through your involvement in this effort, you strive to sell air purification systems and sponsor other individuals to also become dealers. As with other ventures of this nature, it is to your advantage to enlist other dealers who will also sell the air purifiers, because you obtain credit for their sales and sponsorships in addition to those of your own.

Your supervisors at the Public Health Unit have requested that both you and your wife discontinue all direct and indirect involvement with the company and the sales of its air purification equipment during your off-duty hours. In their view, your actions conflict with your public duties because, they claim, your public duties at times directly or indirectly involve indoor air quality issues, you have performed many indoor air quality inspections of commercial and other facilities for the Public Health Unit, and you consult with and advise owners, operators, and other persons involved in the operation of commercial and industrial facilities in various environmental health program areas. They also voice concern about your access to information not available to the general public where you could learn of facilities having indoor air quality problems which you would then seek to remedy as an air purifier distributer. Finally, there is a concern that you would provide preferential treatment to businesses or other entities who buy air purification systems from you while they are regulated by the Public Health Unit.

Because you disagree with whether you have any ongoing, formal responsibilities for indoor air quality that would create a prohibited conflict of interest with your private involvement in the sales and distribution of air purification systems, you sought to obtain an advisory opinion from this Commission.

Section 112.313(7)(a), Florida Statutes, provides:

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 (1995).]

The first part of Section 112.313(7)(a), Florida Statutes, prohibits a public employee from having a contractual relationship with a business entity which is regulated by his agency. Section 112.313(7)(a) also prohibits a public employee from having a contractual relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which would impede the full and faithful discharge of his public duties. Your Aagency@ for purposes of the Code of Ethics is the Bay County Public Health Unit.

Our concern is not necessarily with the first part of Section 112.313(7)(a), as you have represented that you would neither solicit nor sell air purification systems to business entities regulated by the Bay County Public Health Unit, and there is no suggestion that the company whose products you market is regulated by your agency. Instead, our focus is directed to the second part of Section 112.313(7)(a).

You have represented that air quality is not regulated by you in your position with the Bay County Public Health Unit. Our review of the Florida Statutes suggests that the Department of Health and Rehabilitative Services directly regulates indoor air quality only as it relates to tobacco smoke in public places. See Chapter 386, Part II, Florida Statutes, the Florida Clean Indoor Air Act. Notwithstanding whether the enforcement of the Clean Indoor Air Act is included in your public duties with the Bay County Public Health Unit, it does appear that the various program areas you are assigned to include an indoor air quality element. Each of the rule chapters governing the programs you oversee contain provisions concerning ventilation. See Rule 10D-5.136(16)(a), F.A.C., concerning the ventilation requirements for swimming pool chlorinators; Rule 10D-7.010, F.A.C., concerning the storage of housekeeping equipment in well-ventilated areas within state and local detention facilities; Rule 10D-13.028(4), F.A.C., concerning ventilation requirements for food hygiene; and Rule 10D-104.006(4)(c), F.A.C., concerning the discharge and filtration of noxious air associated with biomedical waste. Thus, it cannot be concluded that your public duties are devoid of indoor air quality regulation issues.

For that reason, there is legitimate concern under our precedent about potential overlap between your public duties with the Public Health Unit and your private interests in selling air purification systems and in enlisting others to also become dealers. In CEO 89-23, we opined that an employee of the Palm Beach County Public Health Unit could not work as an asbestos surveyor in the county where he was employed, where he did not have asbestos-related duties but a coworker did. He was permitted to engage in his proposed work outside of Palm Beach County, however. In CEO 90-22, we concluded that a public health unit employee in Baker County whose public duties included septic tank regulation could perform soil analyses and site investigations for property owners and developers seeking to install septic tanks as long as his work was done outside of Baker County and the individuals he consulted with had no interests within Baker County subject to the regulation of his agency. The rationale of these opinions is also applicable to your situation. In making this finding, we do not question your personal integrity or imply that you would compromise the performance of your public duties in favor of your private interests. The second part of Section 112.313(7)(a) establishes an objective standard which requires an examination of the nature of the public employee=s duties together with a review of his private employment to determine whether the two are compatible, separate and distinct, or whether they coincide to create a situation which tempts dishonor. See Zerwick v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982).

Additionally, we feel compelled to point out that the use of your position as a Sanitation and Safety Supervisor to solicit sales or dealers of air purification systems would violate Section 112.313(6), Florida Statutes, which provides:

MISUSE OF PUBLIC POSITION.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31.

In our view, were you to imply that the equipment you market is recommended or endorsed by your agency or otherwise helps achieve environmental health standards, you could also violate this provision.

Accordingly, we find that a prohibited conflict of interest is created under the second part of Section 112.313(7)(a), Florida Statutes, where you are involved in the sales of air purification systems within Bay County or to persons or businesses located outside of Bay County which also have interests regulated by the Bay County Public Health Unit.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 10, 1996 and RENDERED this 14th day of October, 1996.

___________________________________

Mary Alice Phelan

Chair