No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were the Inspector General for the Florida Lottery to serve on assessment teams for a national law enforcement accreditation organization and where the Florida Lottery's Division of Security is seeking accreditation from the same organization. The Inspector General does not oversee the Lottery's Division of Security and he would play no role in the organization's evaluation of the Division. Under these circumstances, Section 112.316, Florida Statutes, would apply.
Would a prohibited conflict of interest be created were the Inspector General for the Florida Lottery to participate on assessments teams for a national law enforcement accreditation organization where the Florida Lottery has applied for accreditation from the organization?
Under the circumstances presented, your question is answered in the negative.
In your letter of inquiry, you explain that the Lottery's Inspector General, Gerald M. Bailey, has asked you to seek this advisory opinion on his behalf. Your letter continues by describing a national organization which created standards and certification for law enforcement agencies and which has accredited agencies in the United States, Canada, and the U.S. possessions. When an agency decides to subject itself to the accreditation process, it pays a fee to the accrediting organization and begins a "self-assessment," comparing itself to the established standards. Once the agency completes its self-assessment, the national organization sends a team of three assessors to objectively evaluate the agency. You explain that the pool from which the national organization chooses the team of assessors is composed of individuals from agencies having participated in the accreditation process, usually from agencies already accredited. The national organization pays each team member's travel expenses and a stipend of $175 per day for the three or four day on-site assessment, with the team leader receiving a $250 per day stipend.
In 1988, during his previous employment with the Florida Department of Law Enforcement, the Lottery's Inspector General was the Accreditation Manager when FDLE submitted to the same organization's accreditation process. After FDLE received accreditation, he began serving on teams conducting the on-site accreditation inspections of other law enforcement agencies. He has done one or two of these inspections annually since 1990, usually as the team leader, for which he takes annual leave to participate. He has continued to participate in these assessment teams even after his 1999 appointment as Inspector General for the Lottery.
In 2002, the Florida Lottery's Division of Security applied to the national organization to undergo accreditation and paid a fee of approximately $8,000. The Division is now in the self-examination stage of the accreditation process. You add that the Division is not under the Inspector General's supervision; nor will he be a member of the national organization's assessment team reviewing the Division. Since the Division of Security applied for accreditation, the Inspector General has declined invitations to lead teams inspecting the North Carolina State Bureau of Investigation and the National Oceanographic and Atmospheric Administration Police. However, he questions whether a conflict of interest is created if he were to participate in future team assessment activities involving other law enforcement organizations.
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.
This statute prohibits a public employee from having an employment or contractual relationship with a business entity which is doing business with or regulated by his agency. It also prohibits a public employee from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between private interests and the performance of public duties, or which impedes the full and faithful discharge of public duties.
The first issue to address is whether the Inspector General's participation in an assessment team on behalf of the organization constitutes an employment or contractual relationship for purposes of Section 112.313(7)(a). Our precedent has generally viewed the receipt of travel expenses and fees as an employment or contractual relationship. See CEO 93-23. Based upon this precedent, we likewise conclude that he has an employment or contractual relationship with the national organization.
Although the Lottery does not "regulate" the accreditation organization, we must next determine whether the national organization is "doing business" with the Florida Lottery. We previously have interpreted the term "doing business" to encompass situations where the parties have entered into some type of legal arrangement under which one party would have a cause of action against the other in the event of a default or breach. See CEO 88-65 and the opinions cited therein. In our view, the payment of a fee to undergo the evaluation process and receive accreditation does constitute "doing business" for purposes of Section 112.313(7)(a), Florida Statutes.
However, Section 112.316, Florida Statutes, provides as follows:
CONSTRUCTION. --It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency, or county, city or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county city, or other political subdivision of the state involved.
This provision mandates that the Code of Ethics not be construed to prohibit a public employee from engaging in private pursuits which do not interfere with the full and faithful discharge of his public duties. One of the fundamental purposes of Section 112.313(7)(a) is to prohibit those situations in which a public officer or employee could obtain preferential treatment from, or award public business to, a business entity with which he is associated. Thus, we have interpreted Section 112.316 to apply to situations in which an employee is not in a position to give advice or recommendations regarding any business transacted between his agency and a business entity. In CEO 88-2, we concluded that a staff attorney with the Florida Department of Professional Regulation who wrote a manuscript on condominium law for a publishing company whose updates the Department purchased for its legal publications did not violate Section 112.313(7)(a) based upon the application of Section 112.316.
We are of the opinion that Section 112.316, Florida Statutes, would be appropriately applied in this situation. The Lottery's Division of Security is not under the Inspector General's supervision, and he will play no role in reviewing the Division's accreditation efforts on behalf of the national organization. He uses annual leave to participate on inspection teams and, while it enhances his professional reputation to participate on these teams, it also enhances his agency to have one of its employees serving as an assessor. Under these circumstances, it would not violate Section 112.313(7)(a), Florida Statutes, for the Lottery's Inspector General to participate on inspection teams for a national law enforcement accreditation organization.
Your inquiry is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 23, 2004 and RENDERED this 27th day of April, 2004.
Richard L. Spears