CEO 98-21 -- December 3, 1998

 

CONFLICT OF INTEREST

 

AIRPORT AUTHORITY SENIOR DIRECTOR=S SPOUSE

EMPLOYED BY ENGINEERING FIRM CONTRACTING

WITH THE AUTHORITY

 

To:      Charles D. Bailey, Jr., General Counsel for the Sarasota-Manatee Airport Authority (Sarasota)

 

SUMMARY:

 

No prohibited conflict of interest is created under the Code of Ethics by the employment of the wife of an Airport Authority Senior Director with an engineering firm doing business with the Authority when the Senior Director has oversight responsibility over the Manager of Environmental Affairs, who has direct responsibility for engineering contracts awarded by the Authority.

 

Because the wife is not an officer, partner, director, or proprietor of the engineering firm contracting with the Authority, and because she does not own more than a five percent interest in the firm, Section 112.313(3), Florida Statutes, is not applicable.

 

No violation of Section 112.313(4), Florida Statutes, exists because the Senior Director's wife was employed by the firm long before it could be foreseen by the Senior Director, his wife, or anyone else that he would be assuming the responsibility of overseeing the Authority's engineering and planning activities, and because there is no indication that the firm's offer of employment to the wife was in any way contingent upon any action or inaction expected of him or was offered to influence any action in which he is expected to participate.

 

Finally, Section 112.313(7)(a), Florida Statutes, is not applicable because the Senior Director is not employed by the firm.  Section 112.313(7)(a) does not prohibit a public officer's or employee's spouse from being employed by a business entity doing business with that officer's or employee's agency.

 

QUESTION:

 

Is a prohibited conflict of interest created under the Code of Ethics by the employment of the wife of an Airport Authority Senior Director with an engineering firm doing business with the Authority when the Senior Director has oversight responsibility over the Manager of Environmental Affairs, who has direct responsibility for engineering contracts awarded by the Authority?

 

Your question is answered in the negative.

 

In your letter of inquiry, you advise that you are requesting this opinion on behalf of the Executive Director of the Sarasota-Manatee Airport Authority (AAuthority.  He is inquiring whether a prohibited conflict of interest is created by the employment of the wife of Noah Lagos, a Senior Director for the Authority, by an engineering firm doing business with the Authority.

 

You advise that the Senior Director's areas of responsibility historically have involved oversight of the Authority's managers of Facilities, Environmental Affairs, Operations, and Airport Police and Firefighters.  However, as a result of a recent reorganization within the Authority, you advise, the function of planning and engineering will be shifted to the Manager of Environmental Affairs over whom the Senior Director will exercise supervision.  As a consequence, you advise, the Manager of Environmental Affairs will have direct responsibility, and the Senior Director will have oversight responsibility, for the following activities related to engineering contracts awarded by the Authority:

 

1.         defining the scope of engineering projects;

2.         preparing requests for proposals for engineering contracts;

3.         making recommendations to the Authority Board on the ranking of engineering firms responding to the requests for proposals;

4.         negotiating contracts with engineering firms in the order that they are ranked by the Authority Board;

5.         administering and monitoring of the engineering contracts after they are awarded; and

6.         evaluating and recommending any engineering contract change orders to the Authority Board.

 

You advise further that the Senior Director's wife (A wife) is employed as a Senior Airport Noise Specialist by an engineering firm which has provided engineering services to the Authority on a non-exclusive basis for many years.  The firm currently is working on a project for the Authority, you advise, and is likely to seek future contracts with the Authority for the performance of engineering services on other Authority projects.

 

You write that the Senior Director has indicated that his wife is not an officer, partner, director, or proprietor of the firm; nor does she have a material interest, as that term is defined at Section 112.312(15), Florida Statutes, in the firm.  Prior to being employed by the firm, and prior to her recent marriage to the Senior Director, the wife was employed by the Authority as Manager of Environmental Affairs, you advise.  She became employed by the firm approximately two years ago, before it reasonably could be foreseen that the Senior Director would be assuming responsibility for overseeing the Authority's engineering and planning activities, you write.

 

You relate that there is no indication that the wife's employment with the firm was in any way contingent upon any action or inaction expected of the Senior Director in his official capacity, and there is no indication that the wife was offered employment with the firm in order to influence some action in which he was or may be expected to participate.  Moreover, since becoming employed by the firm, the wife has not undertaken to perform any engineering work under the firm's contracts with the Authority; nor is it anticipated that she will perform engineering services in connection with any future contracts between the firm and the Authority, you advise.

Furthermore, you advise that the Senior Director is aware that any attempt by him to use his official position to benefit the firm could violate the Code of Ethics.  In particular, he is aware that a violation could be created if it can be shown that a future contract with the firm is not in the best interests of the Authority, that proper procedures were not followed in awarding the contract, that the firm was given special consideration or other privileges not given to others seeking the contract, or that the Senior Director acted in some other manner which could be viewed as inconsistent with the proper performance of his public duties.

Sections 112.313(3) and (4), Florida Statutes, are the only provisions of the Code of Ethics which specifically concern conflicts of interest for local public employees based upon a spouse's interest or actions.  Those sections provide:

 

DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's spouse or child, or any combination of them, has a material interest.  Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she is serving as an officer or employee of that political subdivision.  The foregoing shall not apply to district offices maintained by legislators when such offices  are located in the legislator's place of business.  This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a)  October 1, 1975.

(b)  Qualification for elective office.

(c)  Appointment to public office.

(d)  Beginning public employment.

[Section 112.313(3), Florida Statutes.]

 

UNAUTHORIZED COMPENSATION.--No public officer  or employee of an agency, or local government attorney or his or her spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his or her official capacity. [Section 112.313(4), Florida Statutes.]

 

Section 112.313(3), Florida Statutes, prohibits the Senior Director from acting in his official capacity to purchase, rent, or lease, any realty, goods or services for his agency, the Authority, from a business entity of which his wife or children are officers, partners, directors, or proprietors, or in which he or his wife or children own more than a five percent interest, and from selling or leasing any realty, goods, or services to the Authority in his private capacity.  We find that this provision is not applicable because the wife is not an officer, partner, director, or proprietor of the firm and does not own more than a five percent interest in the firm.  See CEO 76-126 (Section 112.313(3) does not prohibit a school system employee's wife from being employed by an insurance company doing business with the school system where neither the wife nor the employee own a material interest in the company) and CEO 80-20 (Section 112.313(3) is not applicable where the spouse of a deputy district administrator for DHRS has no interest in a company which is contracting with the district, except as an employee).

 

Section 112.313(4), Florida Statutes, also prohibits the Senior Director, as a public employee, and his wife from accepting compensation, payment, or a thing of value if he knew or should have known that it was given to influence his official actions, as an employee of the Authority.  We previously have advised that this provision places the burden upon the public officer or employee  to exercise reasonable care in determining whether a particular payment or thing of value has been given with the intent to influence his official actions.  See CEO 98-14.  We have said that assuming the donor, the firm in this case, is in a position to be benefited by the public officer's or employee's action, the officer or employee should weigh the value of the thing received against the ostensible purpose for its being given.  The larger its value, the more difficult it should be to justify its being given for any reason except to influence, assuming that there is some official action on the part of the recipient anticipated in the future, such as, for example, his oversight of contracts between the Authority and the firm.  See CEO 80-60.

 

Here, the wife was employed by the firm long before it could be foreseen by the Senior Director, his wife, or anyone else that he would be assuming the responsibility of overseeing the Authority's engineering and planning activities or, in other words, the engineering contracts that the Authority awards.  There also is no indication that the firm's offer of employment to his wife was in any way contingent upon any action or inaction expected of him or was offered to influence any action in which he is expected to participate. Consequently, because there is no indication that the Senior Director's wife accepted her employment with the firm when he knew or should have known that it was given to influence his official actions, we find that the wife's employment by the firm does not create a violation of Section 112.313(4), Florida Statutes.

 

The Code of Ethics also 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, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, County, or other political subdivision of the state; 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.]

 

This provision prohibits the Senior Director from being employed by a business entity if it is doing business with or is subject to the regulation of his agency, the Authority, or if it creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties or an impediment to the full and faithful discharge of his public duties.

We find that Section 112.313(7)(a) is not applicable here because the Senior Director is not employed by the firm, his wife is.  We previously have opined that Section 112.313(7)(a) does not prohibit a public officer's or employee's spouse from being employed by a business entity doing business with that public officer's or employee's agency.  See CEO 76-126 and CEO 80-20.

 

Finally, as you have indicated, the Senior Director should remain vigilant to avoid running afoul of Section 112.313(6), Florida Statutes, which provides as follows:

 

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency 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.  [Section 112.313(6), Florida Statutes.]

 

For purposes of this provision, the term "corruptly" is defined as follows:

 

"Corruptly" means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.  [Section 112.312(9), Florida Statutes.]

 

As we noted in CEO 90-42, Section 112.313(6) provides protection from abuse in those situations where there is not a conflicting employment or contractual relationship, but yet there may be some potential for use of a public position to benefit a private interest.

 

Accordingly, we find that no prohibited conflict of interest is created under the Code of Ethics by the employment of the wife of an Airport Authority Senior Director with an engineering firm doing business with the Authority when the Senior Director has oversight responsibility over the Manager of Environmental Affairs, who has direct responsibility for engineering contracts awarded by the Authority.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 3, 1998 and RENDERED this 8th day of December, 1998.

 

 

 

__________________________

Charles A. Stampelos

Chairman