CEO 87-71 -- September 16, 1987

CONFLICT OF INTEREST

DEPARTMENT OF STATE EMPLOYEES CONTRACTING TO PROVIDE

SERVICES FOR ENTITIES DOING BUSINESS WITH DEPARTMENT AND

TO PROVIDE SERVICES WHICH DEPARTMENT COULD PERFORM

To: Mr. George W. Percy, Director, Division of Historical Resources, Department of State

SUMMARY:

No prohibited conflict of interest is created where employees within the Department of State, Division of Historical Resources, privately contract to provide professional services for business entities which periodically do business with the Division. Section 112.313(7)(a), Florida Statutes, does not prohibit a public officer or employee from contracting with or being employed by a business entity which is not doing business with his agency at the time he is working for the business entity. However, were an employee in the Bureau of Archaeological Research to enter into a contract for professional services with a business entity when the Bureau would be capable of providing the same services under a similar contractual relationship, the private employment would be deemed to impede the full and faithful discharge of the employee's public duties and to constitute a prohibited conflict of interest under Section 112.313(7).

QUESTION 1:

Would an employee within the Bureau of Historical Museums in the Department of State, Division of Historical Resources, be prohibited from entering into a contract with a business entity to conduct archaeological work if, during the period of that contract, the Bureau was not doing business with the business entity, even though the Bureau periodically does business with that entity?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that many of the employees within the bureaus of the Department of State, Division of Historical Resources, have statewide or nationally recognized expertise in their areas of responsibility. Because of this expertise, it is not unusual for these employees to enter into contracts to provide professional services for business entities which at times do business with their bureaus. You advise that typically the bureau has not contracted with the business entity at the same time the employees have contracted to provide their services.

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).]

The term "agency" is defined as follows:

"Agency" means any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university. [Section 112.312(2), Florida Statutes (1985).]

Therefore, this provision prohibits an employee of a bureau from having an employment or contractual relationship with a business entity which is doing business with that bureau, and it also prohibits relationships which create a continuing or frequently recurring conflict of interest or which would impede the full and faithful discharge of the employee's public duties.

Prior Commission opinions have found Section 112.313(7)(a), Florida Statutes, not to be violated in situations where the contractual relationships between the agency, employee, and private business entity were not concurrent. In CEO 85-79, no prohibited conflict of interest was found to be created where a program manager with a district of the Department of Health and Rehabilitative Services was employed part-time with a business which had contracted with the Department in the past but which currently had no contract with the Department. Further, in CEO 82-54 we stated that Section 112.313(7)(a) does not prohibit a public officer or employee from contracting with businesses which are not doing business with his agency during the time he is doing business with them.

Accordingly, an employee of the Bureau of Historical Museums would not violate the mandates of Section 112.313(7)(a), Florida Statutes by contracting with business entities which are not concurrently contracting with the Bureau.

QUESTION 2:

Would a prohibited conflict of interest be created were an employee in the Bureau of Archaeological Research, Division of Historical Resources, to enter into a contract for professional services with a business entity if the Bureau could also provide those same services under a similar contractual relationship?

Your question is answered in the affirmative.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that Roger Smith, an employee within the Bureau of Archaeological Research, has been asked to serve as a private consultant on a project concerning the construction of a replica of the Nina, a ship in the Columbus fleet. The individual was approached prior to gaining employment with the Bureau, and as yet has not accepted the job. While the Bureau has not been approached to work on the project, you advise that it would be capable of preparing the project plans and might be interested in doing so, as the project would qualify the Bureau for funding and enhance the Bureau's reputation. The Bureau's ability to do the work is dependent upon the employee's particular capabilities. You question whether a prohibited conflict between the employee's private interests and his public duties would be created if he were to accept the employment.

In our view, this situation requires us to consider the second portion of Section 112.313(7)(a), Florida Statutes, which prohibits a public employee from having or holding an 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. We believe that a conflict of interest would be created were the employee to accept employment in a private capacity which his agency could handle in an official capacity. As you mentioned in your communications with our staff, employees within all Bureaus of your Division are highly qualified individuals in their chosen fields. The fact that they have achieved an expertise in certain areas, an expertise which may have been reached prior to gaining public employment, qualifies them for many opportunities of outside employment. We are of the opinion that when these individuals accepted their public positions, they accepted the responsibilities of carrying out their public duties; in so doing, they are required to sacrifice those private opportunities which would conflict with their public duties.

In the instant case, the employee undoubtedly was hired by the Bureau to do the same type of work which the private business entity would like him to do. Although the Bureau has not been approached to do the work, it has the capability to do the job and may wish to do such work. Were the employee to do the work independently of the Bureau, the employment would impede the full and faithful discharge of his public duties under Section 112.313(7)(a) of the Code of Ethics.

In CEO 79-47, we stated, "For a state employee to benefit privately from a situation in which his state could participate officially suggests the possibility of, or the potentiality for, an employee's diverting agency-related business to himself for private gain." Our opinion should not be read to say that the Bureau employee cannot have any outside employment, as it is not the intent of the Code of Ethics to have that effect. Had the employee accepted the private employment prior to being hired by the Bureau, the Code of Ethics would not have required him to abrogate his contractual responsibilities and to turn the work over to the Bureau. Also, if a job opportunity for the employee is one which the Bureau cannot or will not do, he would be allowed to accept it as long as he would have no part in the decision-making process of the Bureau for project acceptance or denial (which would give the appearance of a misuse of public position), did not use agency resources, and did not allow the private work to conflict with his public duties.

Accordingly, we find that a prohibited conflict of interest would be created were the subject employee of the Bureau of Archaeological Research to enter into a contract for professional services with a business entity if the Bureau could provide those same services under a similar contractual relationship and is willing to do so.