CEO 90-65 -- October 19, 1990

CONFLICT OF INTEREST

COUNTY PUBLIC HEALTH UNIT ENVIRONMENTAL SPECIALIST

SEEKING TO ESTABLISH PRIVATE BUSINESS OUTSIDE COUNTY

To: Terry Graham, Environmental Specialist I, H.R.S./Baker County Public Health Unit (Macclenney)

SUMMARY:

No prohibited conflict of interest would be created were an environmental specialist with a county public health unit responsible for processing permit applications for on site sewage disposal systems to perform soil analyses and site investigations for property owners and developers planning to install on site sewage disposal systems outside the county and having no interest inside the county subject to the regulation of the county public health unit. Section 112.313(7)(a), Florida Statutes, would not be violated because the employee would not hold any contractual relationship with a business entity subject to the regulation of his agency.

QUESTION:

Would a prohibited conflict of interest be created were you, an Environmental Specialist with a county public health unit, to conduct soil analyses and site investigations for developers and property owners planning to install on site sewage disposal systems outside the county?

Your question is answered in the negative.

We previously advised you, in CEO 90-22, that we did not find that a prohibited conflict of interest would be created were you, an Environmental Specialist I with the H.R.S./Baker County Public Health Unit, to perform soil analyses and site investigations for developers and property owners outside of Baker County who plan to install on site sewage disposal systems. This, in essence, is the work you currently perform in your position with the Public Health Unit with respect to systems to be located in the County. You previously advised our staff that you neither would do business with the H.R.S./Baker County Public Health Unit nor work for any person or company that did work in that County.

You have provided our staff with additional information, at your employer's request, that you wish us to consider and determine whether it affects our decision in CEO 90-22.

First, a letter from the Chief of Environmental Health Services for H.R.S. states that he is troubled by the "potential for conflict of interest." His concern appears to address the possibility of a developer for whom you previously performed work outside the County later coming before the H.R.S./Baker County Public Health Unit.

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 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.

In previous opinions, we have taken the position that Section 112.313(7)(a) is violated only when the contractual relationship occurs at the same time as the regulatory relationship. See CEO 81-20 and CEO 81-35. This concept was also noted in Taunton v. Tapper, 396 So.2d 843 (Fla. 1st DCA 1981), where the Court acknowledged that the Commission construed Section 112.313(7)(a) to require present, as opposed to future, regulation. Id. at 845. We therefore take the position that the Code of Ethics does not prohibit you from working for persons that may at some point in the future be regulated by your agency.

Secondly, you have provided our staff with correspondence from the H.R.S. Deputy District Administrator for Health which states that "such activity would be in direct conflict with the H.R.S. county public health unit in the county in which you were operating." We believe CEO 90-22 adequately addressed the situation. For purposes of the Code of Ethics, your "agency" is the H.R.S./ Baker County Public Health Unit. It does not include other public health units in other counties; nor does it include the entire Department of Health and Rehabilitative Services. See CEO 84-27. As you do not intend to have any employment or contractual relationship with any business entity that is subject to the regulation of, or doing business with, the H.R.S./Baker County Public Health Unit, we do not believe that your proposed business would constitute a prohibited conflict of interest with your public duties.

You also have provided a memorandum from the Administrator of a neighboring county's public health unit that discusses their policies concerning the qualifications and use of independent contractors to perform soils and site analyses, and the payment of permit processing fees that accompany applications for on site sewage disposal systems. He is concerned that if you, in your private business capacity representing a person subject to the regulation of his county's public health unit, became involved in a technical dispute with an H.R.S. employee on his staff, it would be a conflict of interest. As we have stated, we consider your agency to be the H.R.S./Baker County Public Health Unit and on that basis do not believe the potential situation would create a prohibited conflict of interest.

However, Section 112.313(7)(a) also prohibits a public employee from holding employment "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 have considered the potential for interagency conflicts in other opinions. In CEO 83-46, we found a prohibited conflict of interest would exist if a municipal police officer were allowed to work as a private investigator for a private attorney. He would have investigated both civil and criminal cases involving the city and its police department. We found that his access to confidential information, and the potential for undermining the police department's standing with other law enforcement agencies, could have led to a disregard of his public responsibilities on a frequently recurring basis and could have impeded the full and faithful discharge of his public duties. We also found this provision to be critical in our decision in CEO 88-59, where city fire department employees sought permission to operate a private fire investigation business while off-duty. Again, their access to confidential records and the potential for abuse, as well as the potential for disruption of the fire investigation process in the tri-county area in which they were employed, were significant to our decision.

We do not find those elements present in your proposed situation, which we believe to be more analogous to the factual situation presented in CEO 89-23. As discussed in CEO 90-22, CEO 89-23 allowed a county public health unit employee responsible for asbestos regulation to perform private asbestos inspections outside the county where he was employed. Although your private employment may lead to technical disputes with H.R.S. employees in other counties, we do not see how this potential could undermine the regulation of on site sewage disposal systems from county to county.

This memorandum also raises a concern over your use of leave to meet with the regulatory staff of county public health units, if necessary, in your private capacity. We addressed this issue in CEO 86-81, where we stated that "the decisions of whether to allow accommodations in an employee's work schedule and when an employee may use accrued leave rest with the discretion of the employer and are not governed by the statute."

Finally, it is apparently your contention that the implementation of these policies by this particular county work to your disadvantage; you would not be allowed to perform your proposed services in that county due to these policies, and you believe these policies are in violation of state statutes and regulations adopted by H.R.S. We do not have the authority to interpret the application of these regulations and policies to your proposed business. We have evaluated your proposed business in the context of Chapter 112, Part III, Florida Statutes, and on this basis we reaffirm our decision in CEO 90-22.

Accordingly, we find that no prohibited conflict of interest would be created were you, a county public health unit employee responsible for regulation of private on site sewage disposal systems, to perform soil analyses and site investigations for developers and property owners outside the county who plan to install such systems and have no interests within the county subject to the regulation of the county public health unit.