CEO 87-10 -- March 11, 1987

CONFLICT OF INTEREST

DEPARTMENT OF BANKING AND FINANCE EMPLOYEE

CONTRACTING WITH BANKERS TRADE ASSOCIATION

To: William Douglas Johnson, Chief of Research, Planning and Staff Development, Division of Banking, Department of Banking and Finance

SUMMARY:

No prohibited conflict of interest would be created were the Bureau Chief of Research, Planning and Staff Development for the Division of Banking, Department of Banking and Finance, to contract with a trade association for nationally and state-chartered banks to develop a book of computer-generated maps that would be marketed to their membership. The contractual relationship would not create a conflict under Section 112.313(7)(a), Florida Statutes, as the association and its member banks are not regulated by or doing business with the employee's agency. Section 112.313(8), Florida Statutes, which prohibits the disclosure or use of certain information, would not apply as the employee would utilize information available to the general public in his private pursuits. CEO's 83-10 and 83-19 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, the Chief of the Bureau of Research, Planning and Staff Development for the Division of Banking, Department of Banking and Finance, to contract with the Florida Bankers Association to develop a book of computer- generated maps that would be marketed to their membership and other interested parties?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry you advise that you are the Chief of the Bureau of Research, Planning and Staff Development for the Division of Banking, Department of Banking and Finance. The Division of Banking is responsible for the supervision and regulation of state-chartered commercial banks, savings and loan associations, credit unions, and international agencies. As Chief of the Bureau of Research, Planning and Staff Development, you function as the office manager of the Division. You also function as the Division's economist. In this role, you provide the Division Director and his assistant with a briefing of the merits, demerits, and other aspects of the economic feasibility of applications for authority to organize new banks. In particular, the Bureau conducts an evaluation of the location chosen by each proposed new bank. This evaluation consists of an analysis of the local market, including population and employment growth, as well as the location of and deposit growth within competing financial institutions. Once a bank has received approval to organize, supervision of its opening and subsequent operation is the responsibility of other bureaus.

You advise that you have used computer-generated maps to aid in the study of the need for area field office expansion and other projects. In the course of your activities, you began to develop maps using existing Division software and banking deposit information available from the Florida Bankers Association (FBA), a trade association comprised of nationally and state-chartered commercial banks. The document containing the information from which the maps were derived is available to the general public. You advised in a subsequent letter that when you began experimenting with distributing the FBA data geographically, you had Divisional use in mind. You found the task to be labor-intensive and that you did not have the manpower to produce the maps. Therefore, you contacted the FBA in search of a less time-consuming way to complete the data-keying process. You state that you were hoping that you could receive the data on a floppy disk rather than having to rekey the data at your office. You learned that this would be impossible, but it was during this search that the FBA expressed interest in these maps and inquired about the possibility of entering into a contractual relationship with you whereby you would use your computer expertise to develop a book of maps that the FBA would in turn market to its membership and other interested parties. The exact nature of the proposed contractual relationship has not yet been determined. You plan to enter into an agreement with the FBA whereby you would provide computer data manipulation and map production services in return for either payment for your time or a portion of the atlas revenues. No public materials or time would be used in developing the book.

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 (1985).]

This provision prohibits a public employee from having a contractual relationship with a business entity which is subject to the regulation of, or is doing business with, his agency. Your "agency" for the purposes of the Code of Ethics is the Bureau of Research, Planning and Staff Development.

Clearly, the Bureau of Research, Planning and Staff Development does not regulate or do business with the FBA, with which you would be contracting. You further state that no direct relationship exists between the FBA and the Department of Banking and Finance. While the Department regulates state-chartered banks, the Department has no regulatory responsibilities regarding the FBA. Just as clearly, however, your Bureau is involved in the regulation of state-chartered banks by virtue of its review of applications for authority to organize new banks. Were you to enter into a joint venture with the FBA to develop and sell the book, you also would have a contractual relationship with those persons or entities who purchased the book. Under these circumstances, therefore, Section 112.313(7)(a), Florida Statutes, would prohibit you from selling the book to persons or entities doing business with the Bureau or whose applications are reviewed by the Bureau.

Section 112.313(7)(a), Florida Statutes, also prohibits a public employee from having any contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. In a telephone conversation with our staff you advised that the development of these maps was your original idea. While the Division did not request you to develop these maps, you spent a limited amount of time on the project in hopes that it would have some application at the Division. You discovered that that task was labor-intensive, did not justify the manpower expended, and had limited use within the Division. For these reasons, we are of the opinion that your production of these maps for the FBA would not conflict with or impede the discharge of your public duties. Further, in a telephone conversation with our staff you advised that the FBA does not intervene or become involved in the Department's review of applications or the Department's approval to organize process. Therefore, we see no reason to believe that your relationship with the FBA would tend to lead to disregard of your public duty to review applications independently and impartially, without favoring one bank over another except on the merits of the bank's application.

The Code of Ethics also provides:

DISCLOSURE OR USE OF CERTAIN INFORMATION. -- No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), Florida Statutes (1985).]

In a previous opinion, CEO 83-10, we found no prohibited conflict of interest under this provision where the Director of the Division of Public Schools, Department of Education, proposed to form a corporation which would develop, copyright, and market materials relating to public education to the general public. In that case, the employee had tried to encourage the Department to publish similar materials, but the Department had not been able to obtain funding from the Legislature. Any information gained by the employee and used for publication was limited to official public records. In addition, the situation did not involve the sale of materials developed by the Department, as was the case in CEO 80-21 and CEO 81- 54.

Similarly, in CEO 83-19, no prohibited conflict of interest was found where an engineer employed by the South Florida Water Management District was to be hired by an engineering firm to translate a computer program, which had been developed by the District and made available to the public, into a program compatible with the firm's computer. There, the computer program developed by the District had been made available to the public. Also, the employee's ability to translate the computer program was not a result of his employment with the District, but resulted instead from his background in programming prior to his employment with the District. The District did not require the employee to perform these computer conversions as part of his job responsibilities.

We are of the opinion that Section 112.313(8), Florida Statutes, does not apply to the situation you have described. First, the information you would be working with is available to members of the general public. Secondly, your ability to apply the data is not the result of your public position. You advised that prior to coming to the Division you spent six years in the private sector doing geographic analysis. During those years, you used the same FBA data for geographic analysis and also used computers to distribute information geographically. Finally, while you experimented with the use of the FBA data while a state employee, you found that the technique had limited application to the work of your agency.

Accordingly, we find no prohibited conflict of interest would be created were you to contract with the Florida Bankers Association to develop a book of computer-generated maps that would be marketed by the Association to their membership.