CEO 95-11 -- June 1, 1995

CONFLICT OF INTEREST

DEPARTMENT OF ENVIRONMENTAL PROTECTION DIVISION DIRECTOR

CONSULTING WITH COMPANY PROVIDING MAINTENANCE

SERVICES TO WASTEWATER TREATMENT FACILITIES

To: Mr. Richard M. Harvey, Director, Division of Water Facilities, Department of Environmental Protection (Tallahassee)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were the Director of the Water Facilities Division, Department of Environmental Protection, to provide consulting services to a company whose services are used by treatment plants regulated by the Division but which are neither mandated nor require permitting by the Department. The company is neither regulated by nor doing business with the Department, and it does not appear that the proposed consulting work will impede the full and faithful discharge of the division director's public duties or create a continuing or frequently recurring conflict between his private interests and the performance of his public duties. Additionally, although the company expects the division director will design and manage a data collection effort to substantiate its claims about improved plant performance, such an effort will not include any data or information contained in the Department's files. Further, the division director's expertise in the area of civil/environmental engineering comes not from his employment with the Department but, primarily, from his educational background and 22 years of experience. Thus, the proposed consulting does not appear to violate Section 112.313(8), Florida Statutes. Also, the division director represents that his private consulting will take place outside his regular working hours, that no Department resources will be used in furtherance thereof, and that neither he nor the company will make any representations suggesting Department endorsement or approval of the company's services. Such representations minimize the potential for misuse of position, in violation of Section 112.313(6), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created were you, a division director with the Florida Department of Environmental Protection, to consult with a Florida-based company which provides services to wastewater treatment plants about developing a market for its services in other states, designing and managing the company's data collection efforts, and helping to create additional uses for its patented technology?

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

In your letter of inquiry and in supplemental information provided by you to our staff, we are advised that you are employed by the Florida Department of Environmental Protection as Director of the Division of Water Facilities. The Water Facilities Division is responsible for the administration of the Department's domestic wastewater, industrial wastewater, and drinking water programs, including the permitting, compliance, and enforcement functions associated with the environmental regulation of those activities.

You relate that you have been offered an opportunity to consult with a Florida-based company which uses patented equipment to perform a wide variety of treatment plant maintenance work and, you relate, the work they perform is not required by the Department; nor does it require any Department permits. You were first introduced to this company approximately four years ago, when its representatives participated in a technical advisory group helping the Department to address and understand issues of proper treatment plant maintenance during rulemaking on the Department's domestic waste rules. The end result of that process was that now, when a treatment plant comes up for permit renewal, an engineer must certify that the facility is in good operating order and that, if properly operated, there are "reasonable assurances" that its effluent will meet the applicable limits. This requirement puts the burden on the owners and their engineers to make sure that their plants are in good working order and has had the effect of making owners pay more attention to treatment plant maintenance while taking some of the burden off plant operators and the Department's inspectors. The Department touts this effort as its MWPP (municipal water pollution prevention) program. You relate that since more attention is being paid to treatment plant maintenance, the company has benefited even though its services are provided only when the engineer (not the Department) convinces the owner that they are needed.

With regard to your proposed consulting activities, you relate that the company would like you to advise it about how it can get similar programs started in other states and advise it about how to obtain data that will substantiate its assumption that the service it provides pays for itself in improved treatment plant performance. You may also advise the company on other uses for its patented technology. Thus, you question whether this type of consulting would create a conflict of interest prohibited by the Code of Ethics for Public Officers and Employees.

The applicable statutory provision is Section 112.313(7)(a), Florida Statutes, which states:

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 (1993).]

The first part of Section 112.313(7)(a) prohibits a public employee from having a contractual relationship with a business entity which is doing business with or regulated by his agency. The second part of Section 112.313(7)(a) 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 impedes the full and faithful discharge of his public duties.

It is clear that the first part of Section 112.313(7)(a) is inapplicable to your proposed situation. The company is neither doing business with the Division of Water Facilities nor regulated by it. Although it does provide services to facilities regulated by the Department, you do not anticipate any contact with those facilities because your proposed work would only involve the company's efforts in projects and issues outside the State of Florida. Nor do you anticipate that the services provided by the company would ever be mandated by the Department. This is so, you believe, because of a long-standing policy on the part of regulatory agencies to leave facility maintenance practices to the discretion of the facility owners, their engineers, and their operators. Regulatory agencies are primarily concerned with the facility's ability to meet its prescribed treatment/effluent limits. For this reason, the Department does not identify specific maintenance practices to be implemented at a facility. Accordingly, the first part of Section 112.313(7)(a) is inapplicable to your inquiry.

With regard to the second part of Section 112.313(7)(a), in CEO 90-16, we advised an HRS employee who wanted to consult with a private company providing consulting services to USDA that her proposed consulting created a prohibited conflict under this provision, since part of what she was being hired to do was to evaluate the program she helped operate in her public capacity. Further, the study she would be privately working on could have had ramifications on the Florida program. Clearly, your situation is distinguishable from that which existed in CEO 90-16, as you are not being asked to evaluate the Department's strategy for addressing water pollution from municipal wastewater treatment facilities, and your efforts on behalf of the company in states outside of Florida do not appear to have any potential ramifications for the State of Florida or facilities operating in this state. Thus, we are of the view that the proposed consulting does not present a conflict under the second part of Section 112.313(7)(a).

We must also evaluate your request in light of Section 112.313(8), Florida Statutes, which states:

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) prohibits a public employee from taking unfair advantage of his position in order to benefit himself or others through the use of information gained by virtue of his public position.

The company is not interested in any data contained in the Department's files, you advise. Instead, it desires to develop a database from its clients which documents improved plant performance. Thus, your efforts would be directed toward designing and managing a data collection effort for this purpose, which is not presently available and which the company would finance. We conclude, therefore, that this aspect of your request does not present a problem under Section 112.313(8), Florida Statutes.

However, we must also address whether, as a consultant, you would be providing information or expertise which you accrued as a result of your position with the Department. While it is impossible to say that none of the knowledge you have obtained in your position with the Department will be utilized, it does appear (and you represent) that your knowledge in the field for which you will be consulting derives primarily from your educational background and your 22 years of experience as a civil/environmental engineer. Thus, your situation is distinguishable from CEO 82-28 and CEO 80-21, where the employees involved had developed special expertise or knowledge as a result of their public positions and sought to parlay that expertise into outside employment. Based upon these considerations, we conclude that your proposed employment would not constitute a conflict under Section 112.313(8), Florida Statutes.

Finally, we believe that it is appropriate to caution you about the proscriptions of Section 112.313(6), Florida Statutes, which states:

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

You acknowledge that your availability to consult would be limited to your weekends at home or while on previously-approved annual leave. Certainly, you must refrain from using any State resource, including time, equipment, or personnel, in furtherance of your personal objectives on behalf of the company. Additionally, you state that you plan to make it clear in your interactions with other regulatory agencies that your involvement with the company is in your private capacity and that the Department in no way endorses or recommends the services provided by the company. Thus, you are cautioned to ensure that your future actions fully comport with the representations contained herein.

Accordingly, we find that no prohibited conflict of interest would be created were you to consult with a company interested in expanding its technology into areas outside the State of Florida.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 1, 1995, and RENDERED this _____ day of June, 1995.

_____________________________

R. Terry Rigsby

Chairman