CEO 99-15 -- November 30, 1999
EDUCATION COURSES AND SEMINARS
To: Dan Gourley, Fire Chief, Bonita Springs Fire Control and Rescue District (Bonita Springs)
SUMMARY:
A prohibited conflict of interest in violation of the second part of Section 112.313(7)(a), Florida Statutes, would be created were a fire district employee to become secondarily employed providing consultations and/or representation to or for architects, contractors, and/or engineers whose work he and/or his employing district reviews, inspects, and approves, and who, therefore, have interests in matters within the jurisdiction of the district, notwithstanding the fact that the projects that the employee consults on may be outside the jurisdiction of the District. Furthermore, due to the necessity of maintaining working and cooperative relationships between the various fire control and rescue districts within the County and the requirement that the employee=s credibility with the County Board of Adjustments and Appeals on behalf of his employing district also be maintained with respect to his and his employing district=s interpretations of the County Uniform Fire Safety Code, which he, in his public capacity, has a duty to interpret and enforce,
QUESTION 1:
Would a prohibited conflict of interest be created were a Fire Control and Rescue District employee whose duties and responsibilities include inspecting and approving development plans and structures for compliance with the County Uniform Fire Safety Code to consult with contractors, architects and engineers engaged in land development within and without the District relative to the interpretation of fire and architectural codes in connection with planned projects to be developed in unincorporated areas of the County, but outside the
You advise that all of unincorporated Lee County (ACounty@) is served by a Anetwork@ of several different fire control and rescue districts. These districts, you advise, are Aindependent governments@ with taxing authority, which use the taxes collected to pay for fire control and rescue activities within their geographic jurisdictional areas. Furthermore, all of the districts have similar interlocal agreements with the County, and all district fire officials apply and interpret the same fire and building codes, you advise. You write that any dispute over the interpretation of the County Uniform Fire Safety Code (AFire Code@) between the fire and rescue districts=
Under the Interlocal Agreement (AAgreement@) between the County and the Bonita Springs Fire Control and Rescue District (ADistrict@) you provided for our review, fire officials of the District and County have Acomplementary@ roles in the interpretation and application of the Fire Code, you advise. The copy of the Agreement that you provided indicates that the District reviews for their compliance with the Fire Code all development site plans, DCI[1]
With respect to development site plans, DCI cases, and building plans, after County staff has completed their review, they are submitted to the District for its review. The District then is authorized to submit written comments to the County=s Division of Community Development=s DCI Coordinator. These comments along with the comments of County staff are then submitted to the County=s Zoning Board before which the District is authorized to appear.
Applications for building permits and certificates of occupancy also are reviewed by the District after County staff, including the County Fire Official, has had an opportunity to conduct their reviews. The District, according to the Agreement, reviews the applications for their compliance with the Fire Code. If disputes arise as to the plans= compliance or there are disputes as to the interpretation of the Fire Code, appeals may be filed with the Lee County Board of Adjustments and Appeals. In addition, prior to issuances of Certificates of Occupancy, the District must conduct final inspections of the development structures to determine whether they comply with the plans approved by the District and the County Fire Official. Again, according to the Agreement, if disputes arise with respect to the District=s determination of the structures=
We are advised that an employee of the District, David Davenport, is responsible in his public capacity for inspecting and approving development plans and structures within the jurisdictional limits of the District for their compliance with the Fire Code. In his private capacity and on his own time, you write, he teaches continuing education courses and seminars related to building and fire codes. He also provides assistance in the interpretation of fire and architectural codes to contractors, engineers, and architects engaged in land development within the County and around the State. In that capacity, you write, he reviews plans for the private architects, engineers, and contractors prior to their submission to local government agencies other than the District for permitting. He also occasionally has appeared on behalf of these same clients before governmental entities other than the District=
You further relate that the employee consults with private architects and developers within fire control and rescue districts other than the District and represents the architects and developers in discussions or disagreements with the other fire control and rescue district fire officials. He has appeared, we are advised, before the County Board of Adjustments and Appeals on behalf of his private clients regarding code interpretations when there existed unresolvable disputes between the other fire control and rescue district officials and his clients. However, some of the individuals and companies with whom the employee has consulted have ongoing projects within the District=s jurisdiction which require his approval for their compliance with the Fire Code.
Under these circumstances and in light of the general definition of Aconflict@ at Section 112.312(8), Florida Statutes[2], you are concerned with whether a prohibited conflict of interest is created by the employee=s outside activities. You also are concerned about whether the Section 112.313(7)(a) prohibition against having Aconflicting employment@ might apply because the employee advocates interpretations of the same Fire Code that he is obligated to interpret and enforce within the District=
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.
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 or her official position for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity.
The first part of Section 112.313(7)(a), Florida Statutes, prohibits the employee from having employment or contractual relationships with business entities or agencies which are subject to the regulation of, or are doing business with, his agency.
Based upon the definition of the term Aconflict@ at Section 112.312(8), the Court in Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982), held that Section 112.313(7)(a) Aestablishes an objective standard which requires an examination of the nature and extent of the public officer's [or employee=s] duties together with a review of his [or her] private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'" Therefore, one of the issues which we must resolve here is whether the employee=s private interests and responsibilities could coincide with his public duties, as an employee of the District, to "tempt dishonor," rather than with whether, through self-imposed limitations, he could avoid succumbing to the temptation of using his position for private benefit and thereby disregarding his public duties and the public interest. See CEO 92-30 and CEO 91-34
We previously have advised that ownership of a business entity, i.e., the employee=s company, constitutes an employment or contractual relationship with that entity. See CEO 83-84 and CEO 87-20. Therefore, assuming that the employee has established a consulting company, we find that his ownership of the company constitutes an employment or contractual relationship with his company. We also find that the his Aagency@ for purposes of Section 112.313(7)(a) is the District, because, as used in the Code of Ethics, the term "agency"
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
Because any company formed by the employee, with which he would have a contractual or employment relationship, would not be regulated by or doing business with the District, we are of the opinion that the first part of Section 112.313(7)(a) is not implicated. However, were the employee to contract directly with architects, engineers, and/or contractors whose work he is reviewing or inspecting in his public capacity or whose work the District is reviewing and/or inspecting for purposes of performing consultations with them, we are of the opinion that a violation of the first part of Section 112.313(7)(a) would exist. Under this scenario, he would have contractual or employment relationships with business entities[3]
With respect to the employee=s possibly reviewing plans for private architects, contractors, and engineers who are involved with properties within the District, and consulting with them on the interpretation and application of fire and architectural codes related to projects being developed within the County and around the State, and occasionally appearing on behalf of these same clients before governmental entities other than the District=s governing Board, we find that a continuing or frequently recurring conflict between the employee=s private interests and the performance of his public duties or an impediment to the full and faithful discharge of his public duties also would be created. Under this scenario, the employee is in a position in his public capacity to review and critique the work of the same architects, contractors, and/or engineers for whom he would be performing consultations and whom he would be representing before governmental entities other than the District in his private capacity. We view the employee as having a duty to review plans, conduct his inspections, and approve development structures within the jurisdictional limits of the District impartially, without potential conflicts with his private interests that might stem from a concern for satisfying or pleasing his clients or their companies. See CEO 94-4
In CEO 81-23, we found that Section 112.313(7)(a), Florida Statutes, prohibits public employees, such as the Executive Director of the State Board of Dentistry, who participate in regulatory matters from transacting business with persons who have interests that fall within that regulatory authority, even though the actual business transacted may not be subject to the regulatory authority. There, we found that the Executive Director=s ownership of a dental laboratory placed him in a position of having continuing business relationships with persons who were regulated by his public agency. We found that when the interests of those persons came before the Board, he would have been presented with a conflict of interest, a situation in which regard for his private interests in the profitability of his laboratory would tend to lead to disregard of his public duty to see that dentists were regulated in the best interests of the public. In addition, we found that the Executive Director=
Similarly, here, although the employee=s clients= projects which he would be consulting on would not be subject to his or the District=s regulatory authority, his clients would have other interests related to projects that fall within either his or the District=s regulatory authority. Therefore, we find that a prohibited conflict exists between the employee=s private interests in the profitability and continuing nature of his consulting business and his public duty to see that his plan reviews and inspections of his clients=
In CEO 88-59, we opined that a prohibited conflict of interest would be created under Section 112.313(7)(a) were municipal fire department employees working in the arson section of their department=s fire prevention bureau to operate a private fire investigative business in their off-duty capacities. We found that because of the sensitivity of the fire investigative process and the need to maintain the public=
1. The need for confidentiality of information in the fire investigation process could be jeopardized where the investigators have clients outside the city who also have interests in cases inside the city.
2.
3.
Reiterating our CEO 88-59 holding in CEO 90-1, we again found that a continuing or frequently recurring conflict of interest would exist even where the investigators, without conducting investigations for their clients, only provided consultation and expert witness opinions. The fact that the investigators= clients may still have had interests in cases within the city, where access to confidential information either through their own agency or through other fire fighting agencies could potentially have benefitted their clients, had not changed.
Finally, in CEO 94-4, we found that a prohibited conflict of interest would be created were the Executive Director of the Education Practices Commission (AEPC@), the state agency responsible for disciplining teachers and school administrators, and investigators responsible for investigating complaints against certificated educators for the Department of Education to provide private consulting/training for local school districts. We found that although the EPC did not regulate school districts, the districts= interests in the decisions of the EPC, which the Executive Director participated in through her giving direction to its members, and the interests of those administrators with whom she would be contracting on behalf of school districts and who were subject to the jurisdiction of the EPC, created continuing conflicts of interest with her proposed private activities. We also found that the public duties and responsibilities of the Department of Education investigators to conduct their investigations with impartiality, that is, to interview witnesses and evaluate the material they gathered impartially, without potential conflict with their private interests that might stem from a concern for satisfying or pleasing their private employers, the school districts, also created prohibited conflicts of interest under the second part of Section 112.313(7)(a).
Accordingly, if the contractors, architects, and/or engineers for whom the employee would be performing consultations are engaged in work he and/or the District reviews, inspects, and approves, notwithstanding the fact that the projects that the employee consults on may be outside the jurisdiction of the District, we find that prohibited conflicts of interest under the second part of Section 112.313(7)(a), Florida Statutes, would be created were the employee to become secondarily employed providing consultations and/or representation to or for these same architects, contractors, and/or engineers. Furthermore, due to the necessity of maintaining working and cooperative relationships between the districts within the County and the requirement that the employee=s credibility with the County Board of Adjustments and Appeals on behalf of the District also be maintained with respect to his and the District=s interpretations of the Fire Code which he, in his public capacity, has a duty to interpret and enforce, we find that appearances of the employee supporting the advice that he has provided to his clients and/or his interpretations of the Uniform Fire Safety Code before fire officials of other fire control and rescue districts within the County and the before the County Board of Adjustments and Appeals also create continuing or frequently recurring conflicts between the employee=
We note that under the second clause of Section 112.313(7)(a), it is not necessary that a public employee actually misuse his or her public position, and this opinion does not make such a finding of misuse or intent to misuse regarding the employee=s proposed conduct. The existence of temptation for a public officer or employee to forsake the objective performance of his or her public duty in favor of his or her own private interests is sufficient to create a prohibited conflict. As noted above, the existence of such a temptation is to be discerned from an examination of the public employee's duties in light of his or her private employment to determine whether the two are Acompatible, separate and distinct or whether they coincide to create a situation which >tempts dishonor.=@
QUESTION 2:
Would a prohibited conflict of interest be created by the District employee=
The employee advises that he teaches continuing education courses, including courses and seminars related to various National Fire Protection Association fire codes, the Standard Building Code, the Florida Accessibility Code, Workers Compensation Laws, and OSHA Work Place Safety Codes, on his own time.
Fire Code Related Courses
1. AFire Codes for New Construction@ -- This fourteen hour course, the employee writes, is held about five time per year for $200 per attendee. Classes have been held in Tampa, Orlando, Miami, Ft. Myers, West Palm Beach, and Naples.
2. ALife Safety Code@ -- This seven (7) hour home study course is offered continuously throughout the year, the employee writes, at a cost of $130 per enrollee.
3. APrivate Fire Service Mains@ -- The employee advises that this one hour course has been offered twice during every two-year license renewal period at a cost of $50 per attendee.
4. ADetermining When Sprinklers are Required@ -- The employee advises that this one hour course has been offered only twice -- once for free at an architects lunch meeting and once for paying attendees at a cost of $35 per attendee.
Courses Unrelated to the Fire Code
1. ABuilding Code Fundamentals@ -- The employee writes that this seven (7) hour course has been conducted only once at a cost of $125 per attendee.
2. AWorkers Compensation@ -- This one hour course, writes the employee, has been conducted once with two attendees at a cost of $35 per attendee. He plans to combine it with the ANew Building Code@ five hour course and the one hour AWork Place Safety@ course.
3. AWork Place Safety@ -- This one hour course, which previously had been offered at a cost of $35 per attendee, writes the employee, as indicated above, will be combined with the ANew Building Code@ five hour course and the one hour AWorkers Compensation@
4. AFlorida Accessibility Code@
5. The new ABuilding Code, Workers Compensation, & Workplace Safety@
The courses that the employee offers, he writes, have been approved by the Department of Business and Professional Regulation (DBPR) and/or the State Fire Marshal for continuing education units (CEUs). Courses related to fire codes are based on the Florida Statutes and the State Fire Marshal=s Arules and regulations,@ advises the employee. The Building Code, the Florida Accessibility Code, Workers Compensation Laws, and OSHA Work Place Safety Codes, upon which his other courses are based, are not codes or regulations which the employee interprets or has authority to enforce in his position with the District.
Attendees of the employee=s courses and seminars, he writes, include architects, engineers, contractors, fire inspectors, and building inspectors--all of whom are required to obtain CEU=s in order to maintain their State certifications and/or licenses. He advises further that he advertises his courses primarily in two ways. The first is through the use of DBPR=s data base of the names and addresses of all architects, engineers, and contractors licensed in the State. When the employee selects an area in which to conduct a class, he sends flyers to individuals in that specific area and to other people who may have asked him to advise them when he is holding a class.
The employee=s aim has been to attract professionals from across the nation to enroll in his correspondence courses, while the intended focus of his in-State courses, as least as far as the architects are concerned, are all 4,000 plus architects licensed or registered in the State. He also aims to attract the substantial number of engineers, contractors, fire inspectors, and building inspectors who are licensed or registered in the State and who all require CEUs. Finally, the employee indicates that one example of the training that he has provided is the training that he provided to a Health System Company for ANew and Existing Health Care Occupancies.@ The training, the employee writes, was based on the NFPA 101 Life Safety Code and concerned two facilities located in two cities within the County (incorporated areas of the County) outside of the District=s jurisdiction.
In CEO 82-39, we found a prohibited conflict of interest would be created were an auditor employed by the Department of Education to teach a course for a school district whose programs were audited by her under the Florida Education Finance Program. Although we did not find that the school district was regulated by the Division of Administration, the auditor=s agency, we found that the auditor performed an important function in the Department=s determination of the amount of funding to be allocated to the district. As we believed that both the Department and the school districts were entitled to complete independence and impartiality during the Department=s audits of the districts, we were concerned that this independence would be threatened by partiality towards the auditor=
Similarly we found in CEO 94-4 that the Executive Director of the Education Practices Commission (AEPC@) and the complaint investigators for the Office of Professional Practices Services within the Department of Education were prohibited by Section 112.313(7)(a) from providing training for local school districts. We found that the school districts and their teachers and administrators were entitled to complete independence and impartiality during the EPC=s consideration of their cases, unaffected by a contract or other business relationship between the Executive Director of the EPC, who was in a position to influence EPC decisions, and the district. We also found that the complaint investigators= duty to conduct their investigations with impartiality
In contrast, in CEO 93-9, we found no violation of Section 112.313(7)(a) was created by an H.R.S. district employee who inspected child care facilities also being employed part-time by a school board to teach a 20-hour course required of child care workers. We found that the school board was neither doing business with nor regulated by the employee=s agency. Therefore, we concluded that the first part of Section 112.313(7)(a) was not implicated. With respect to the second part of Section 112.313(7)(a), we found no prohibited conflict because (1) the students signed up for the child care course many months in advance and did not know who their instructors would be until the first class; (2) the school board employed several different instructors who rotated to different school sites; (3) the H.R.S. employee did not register students for the class; (4) in performing her H.R.S. inspections, the employee did not monitor who had or had not taken the required course; and (5) the H.R.S. employee was paid hourly by the School board regardless of the number of students actually attending the class. Thus, no continuing or frequently recurring conflict between the H.R.S. employee=
More recently, in CEO 98-1, with one exception, we found that no prohibited conflict of interest would be created by a Fire Prevention Specialist employed by the State Fire Marshal=s Bureau of Fire Prevention becoming secondarily employed by a company created to provide training and seminars both in-state and out-of-state for architects, engineers, electrical contractors, and private businesses. We found that because the Fire Protection Specialist no longer taught classes as part of his official duties, and because he was not responsible for acting as an interpreting authority for the uniform firesafety standards or for determining compliance or noncompliance with the uniform standards--a local function--no continuing or frequently recurring conflict between his private interests and the performance of his public duties or impediment to the full and faithful discharge of his public duties was created. Additionally, we found that he had no regulatory authority over any of the people or entities that he wished to serve through the company, and he was not in a position through his public employment to refer clients to his business. However, we did find that a prohibited conflict of interest would be created were he to provide his training and seminars for the architects, engineers, and contractors whose work on or in State-owned or State-leased buildings he inspected in his public capacity, as he would be in a position to review and critique the work of the same architects, engineers, electrical contractors, and businesses for which he proposed to conduct his training and seminars.
Similarly, with one exception, we found in CEO 98-1 that the two engineers employed by the State Fire Marshal=s office, whose sole responsibility was to review plans of State-owned and State-leased properties, would not have prohibited conflicts of interest were they also to become secondarily employed by their company conducting fire and life safety training and seminars.
We adhere to our reasoning in those opinions and find that as long as the courses and seminars taught by the District employee are taught or provided to architects, engineers, and contractors who either work on projects outside of the jurisdiction of the District, or whose work is not currently being reviewed or inspected by the employee or any other District staff, no prohibited conflict of interest would be created. The employee would not have a contractual or employment relationship through his provision of the courses or seminars with business entities regulated by his agency; nor would there be a continuing or frequently recurring conflict between his private interests in providing the courses and seminars and his public duties in conducting his reviews and inspections or in allowing the District to conduct its reviews and inspection impartially or an impediment to the full and faithful discharge of his public duties. Our finding is not based upon what the District employee teaches, but rather on who he teaches. If a prohibited conflict of interest exists, it exists because of the employee=s contractual relationship with those persons or entities who or which are subject to his and/or the District=
Finally, the employee inquires whether a prohibited conflict of interest would exist were an attendee to one of his courses, who has a project which is subject to the regulatory authority of the District, to be permitted to attend at no cost to the attendee or if he were to be employed to teach his courses or seminars to those people or entities possibly subject to his and/or the District=
In CEO 76-21 we found that no prohibited conflict of interest would be created by the chairman of the Public Employees Relations Commission (PERC) teaching a course in labor relations at Florida A & M University without pay. We found that, by giving his time and expertise to the University without compensation, the chairman=s relationship with the University was more in the nature of a donor than an employee and, therefore, Section 112.313(7)(a) was inapplicable. However, in CEO 82-50, we found that a prohibited conflict of interest would be created were a school board member who was a real estate broker to list for sale property owned by the school board, where neither he nor any associate of his real estate firm would receive a commission from the sale. There we found that having undertaken to sell property for the school board, the school board member and/or his firm would be Adoing business with@ the school board. We noted that a fiduciary relationship would be created by the undertaking, which would require a duty of good faith on the part of the broker. We also noted that the failure of the broker to act in good faith could render him and/or his firm liable to the school board for damages suffered as a consequence of his breach of duty. Thus, we found that, notwithstanding the school board member=
However, here we do not perceive that fiduciary relationships between the employee and the attendees of his courses and seminars are created by his teaching. Consequently, we find that were the employee to permit an architect, engineer, or contractor who has a project which is subject either to his or the District=s regulatory authority to attend one of his courses or seminars at no cost to the attendee, Section 112.313(7)(a) would not be applicable, because no contractual or employment relationship would exist. Section 112.313(7)(a) was intended to prevent situations in which private economic situations might override the faithful discharge of public responsibilities. Where the employee would be permitting an individual or entity who or which was subject to the District=
Without additional information concerning the nature of the District employee=s proposed employment by the organizations that he has named, such as how he would be compensated; what his compensation would be based on; how people would be enrolled in his courses; who would enroll them, and how and who would advertise the courses and seminars, we are unable to determine whether the employee=s proposed employment by one or all of the organizations would negate the prohibited conflicting employment or contractual relationship that would be created were one of the paying persons attending his courses have a project which was subject to either his or the District=
Nevertheless, as guidance, we direct the employee=s attention to CEO 79-78, where we found no prohibited conflict of interest would be created were the Executive Director of the State Board of Accountancy to teach a class on accounting ethics at the University of Florida for compensation. As the Executive Director would be receiving compensation for the proposed teaching, we found that he would have a contractual relationship with the University. However, because the University was not subject to the regulation of the Board of Accountancy, that is, the Board=s designation of courses constituting a major in accounting was found to be a requirement imposed not on the University, but rather on applicants for licensure as certified public accountants, the first part of Section 112.313(7)(a) was not implicated. Nor was a violation of the second part of Section 112.313(7)(a) found to exist because it was the University=
Finally, Section 112.313(6), Florida Statutes, and Section 112.313(8), Florida Statutes, prohibit the employee from using any public resources or any information not available to the general public to further his private business activities. In other opinions, such as CEO 98-1, we observed that Section 112.313(8) prohibits public officers and employees from imparting information gained through their official positions and not available to the general public. We assume that this statue does not apply here as it is apparent that the courses and seminars developed and taught by the employee are derived from his expertise rather than from his District employment. Furthermore, we previously have opined that it is extremely doubtful that the imparting of classroom information to students by an instructor constitutes Adisclosure@ within the contemplation of Section 112.313(8) (See CEO 77-41), particularly where, as here, the courses or seminars taught by the employee are approved for CEUs by DBPR and the State Fire Marshal=
Accordingly, we find that as long as the District employee is not serving persons or entities whose work he, in his public capacity, and/or the District are currently reviewing or inspecting, no prohibited conflict of interest would be created were he to become secondarily employed teaching
ORDERED by the State of Florida Commission on Ethics meeting in public session on November 30, 1999 and RENDERED
Chair
[1]A ADCI@ is a development of county impact. It is defined at Chapter 34, Section 34-2 of the County=s Land Development Code as a Adevelopment which because of its character, magnitude, location, size, timing, density or intensity would have a substantial effect upon the health, safety and welfare of the citizens of the county or upon its natural resources.@
[2]The term Aconflict@ or Aconflict of interest@ is defined at Section 112.312(8), Florida Statutes, to mean Aa situation in which regard for a private interest tends to lead to disregard of a public duty or interest.@
[3]The term Abusiness entity@
any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual
Thus, individual architects, contractor, and/or engineers can be a Abusiness entit[ies]@