CEO 02-8 -- March 19, 2002
CONFLICT OF INTEREST; VOTING CONFLICT
ENVIRONMENTAL REGULATION COMMISSION APPOINTEE EMPLOYED
BY ENGINEERING CONSULTING FIRM SELECTED BYU. S. ARMY CORPS
OF ENGINEERS TO WORK ON EVERGLADES RESTORATION PROJECT
To: Name withheld at person's request
No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, where an appointee to the Environmental Regulation Commission is also employed by an engineering consulting firm which has been selected by the U. S. Army Corps of Engineers to serve as its program manager for the Comprehensive Everglades Restoration Project. The ERC member's employment relationship is with the engineering consulting firm, which is neither doing business with nor regulated by the ERC. As for the firm's clients and whether a prohibited conflict would be created for the appointee solely on that basis, there are no facts which would suggest an impermissible overlap between his private employment and his duties on the ERC. The appointee is cautioned against using his public position to market his employer's services and is encouraged to seek further guidance about the applicability of Section 112.3143(2), Florida Statutes, should the ERC be faced with a vote on a matter affecting the scope of work performed for a client of the firm.
Is a prohibited conflict of interest created where you, an appointee to the Environmental Regulation Commission, are employed by an engineering consulting firm which is contracting with the U. S. Army Corps of Engineers to serve as its program manager for the Comprehensive Everglades Restoration Project (CERP) undertaken jointly with the State of Florida?
Your question is answered in the negative, under the circumstances described herein.
In your letter of inquiry, you relate that you have been appointed to the Environmental Regulation Commission (ERC) by the Governor and are awaiting Senate confirmation. In your private capacity, you are a professional engineer employed by an engineering consulting firm which, in a joint venture with another entity, was selected by the U. S. Army Corps of Engineers, Jacksonville District, to serve as its program manager for the Comprehensive Everglades Restoration Program (CERP). CERP was authorized by the Water Resources Development Act of 2000 (WRDA2000), which was signed into law by the President of the United States (Public Law No. 106-541, of the 106th Congress) on Dec 11, 2000. Title VI, Section 601 of the Act describes authorizations specific to CERP, which is essentially a framework and guide for modifications to the Central and Southern Florida Project needed to restore the South Florida ecosystem and to provide for the other water-related needs of the region.
In conversations with our staff, you advise that you have no professional responsibilities with regard to the firm's contract with the Corps; your position with the firm is as director of its South Florida district, and your duties primarily involve marketing the firm's services in that region. You write that it is not anticipated that your employer or the Corps will appear before the ERC concerning the CERP. Further, the scope of your employer's work in connection with the CERP does not include appearing before the ERC on the issue of the phosphorus criterion or providing consultation to the Corps in support of an appearance before the ERC on the issue. You indicate that your employer has further committed that no employee of the firm will appear before the ERC representing any clients while you serve on the ERC.
The ERC is a seven-member body created pursuant to Section 20.255(7), Florida Statutes, as part of the Department of Environmental Protection (DEP). By law, membership on the ERC must be representative of agriculture, the development industry, local government, the environmental community, lay citizens, and members of the scientific and technical community having substantial experience in the areas of water pollution, toxicology, epidemiology, geology, biology, environmental sciences, or engineering.
We are advised in a companion opinion request involving another ERC appointee that the DEP Secretary has rulemaking responsibility under Chapter 120, Florida Statutes, but most proposed rules containing standards are required to be submitted by the Secretary to the ERC for approval, modification, or disapproval. More specifically, the ERC exercises standard-setting authority in the following areas: pollutant discharge prevention and removal; use of wetlands to receive and treat domestic wastewater; establishment of water quality criteria for wetlands; delineation of the extent of wetlands; phosphorous criteria for the Everglades Protection Area; evaluation of existing water quality standards in the Everglades Protection Area; and evaluation of existing State water quality standards and classifications applicable to Everglades Agricultural Area canals. Additionally, the ERC is responsible for establishing priorities and has final state approval on applications for, and disbursements of, federal and state grants for the construction of wastewater or water treatment works.
Pursuant to the Everglades Forever Act of 1994, codified at Section 373.4592, Florida Statutes, DEP and the South Florida Water Management District were given until December 31, 2001, to complete additional research to allow DEP to propose a phosphorus criterion in the Everglades Protection Area and to evaluate existing water quality standards applicable to the Everglades Protection Area and Everglades Agricultural Area canals. The Department was then to file a notice of proposed rulemaking in the Florida Administrative Weekly (FAW) to establish a phosphorus criterion in the Everglades Protection Area. Section 403.804, Florida Statutes, makes clear that the ERC must approve this proposed phosphorus criterion. The Act also contains a default standard of 10 parts per billion (ppb) if a standard is not adopted by December 31, 2003. Within this context, you seek the Commission's guidance on whether your employment with the engineering consulting firm and its relationship with the U. S. Army Corps of Engineers creates a conflict of interest prohibited by the Code of Ethics.
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 or she 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 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 (2001).]
The first part of Section 112.313(7)(a) would prohibit a member of the ERC from having an employment or contractual relationship with a business entity or agency that is doing business with, or is regulated by, the ERC. The second clause of the statute prohibits an ERC member from having an employment or contractual relationship which creates a continuing or frequently recurring conflict or which impedes the full and faithful discharge of public duties.
Your employment is with the engineering consulting firm, but the firm is neither doing business with nor regulated by the ERC. Therefore, although the firm's clients may be regulated by DEP, the first part of Section 112.313(7)(a) would not be applicable to your inquiry. See CEO 95-30, in which we advised that this provision did not prohibit an ERC member's law firm from representing clients who were subject to the standards adopted by the ERC.
In order for a prohibited conflict to be present under the second provision of Section 112.313(7)(a), the public officer must have public duties of a nature and extent such that the officer would be tempted to compromise those duties in favor of his private interests. See Zerweck v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982), where the court held that Section 112.313(7)(a)
establishes an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'
From the information in your letter and from our basic understanding of the statutory and regulatory framework for Everglades restoration, we do not view your employment with the engineering consulting firm as creating an impermissible overlap with your service on the ERC. Initially, we note that you represent that you do not perform work on the CERP under your employer's contract with the Corps. Moreover, the phosphorus criterion is but one element of the massive Everglades restoration undertaking and, as important as it and other water quality parameters are to the health of that ecosystem, the ERC's decision to approve a particular criterion will not have a substantial impact on the scope of the work that your employer performs for its client, the federal government. Thus, we see no impediment to the full and faithful discharge of your public duties as an ERC member arising from your private employment the work your employer performs for the Corps.
With regard to the engineering consulting firm's other clients, in CEO 95-20 we opined that this provision would not be violated where the law firm of an ERC member represented clients on matters before DEP, as the ERC is not directly involved in DEP's regulation of entities through permitting and enforcement proceedings and it neither directs nor oversees the Department's actions in that regard. Therefore, as long as you do not use your position as an ERC member to market your firm's services, which could constitute a misuse of office if done with a corrupt intent, we do not view your private employment as creating a conflict of interest prohibited by Section 112.313(7)(a), Florida Statutes.
Although you have not specifically asked about the voting conflicts law, Section 112.3143(2), Florida Statutes, provides:
No state public officer is prohibited from voting in an official capacity on any matter. However, any state public officer voting in an official capacity upon any measure which would inure to the officer's special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom the officer is retained or to the parent organization or subsidiary of a corporate principal by which the officer is retained; or which the officer knows would inure to the special private gain or loss of a relative or business associate of the public officer shall, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.
This provision does not require State-level officers to abstain from voting when faced with a conflict, but it does require them to disclose the conflict and file a CE Form 8A.
There are no facts in your opinion request which enable us to determine conclusively whether you would have a voting conflict of interest if a matter involving a client of the engineering consulting firm came before the ERC. The issues which would have to be analyzed include whether the matter inured to the special private gain or loss of you or your employer. If an ERC vote affected the scope of work your employer performs for a client, that could require your disclosure and the filing of a memorandum of voting conflict. However, inasmuch as there are no specific facts included with your opinion request, we suggest that if there is doubt with regard to a particular vote, you contact our staff for guidance or seek a further opinion.
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 14, 2002 and RENDERED this 19th day of March, 2002.
Ronald S. Spencer, Jr., Chair