CONFLICT OF INTEREST
DEPUTY SHERIFF EMPLOYED BY COMPANY CONTRACTING WITH SHERIFF'S OFFICETo: Name withheld at person's request (Orlando)
A prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were a sheriff's deputy to be employed as a driver by a company which has supplied the Sheriff's Office with a Mobile Command Post, where the deputy was involved in the acquisition of the vehicle. The conflict would exist until the expiration of the warranty on the vehicle. However, Section 112.316, Florida Statutes, would operate to negate any such a conflict as it relates to any subsequently-purchased vehicle, so long as the deputy has played no part in the purchase.
Would a conflict of interest exist were you, a deputy sheriff, to hold employment as a driver with a company which supplied the Sheriff's Office with a Mobile Command Post, which is still under warranty, where you were involved with the contract?
Your question is answered in the affirmative.
Through your letter and e-mails to, and telephone conversation with, this office, you advise that you are a corporal in the Crime Prevention Unit of the Homeland Security Section in the Community Relations Division of the Administrative Support Bureau of the Orange County Sheriff's Office. Your primary duties involve public education and assistance in the area of crime prevention, and include public speaking, helping establish Neighborhood Watch Groups, and conducting commercial and residential security surveys. As a secondary part of your employment you are a member of the Sheriff's Critical Incident Management Team. You write that
The Critical Incident Management Team is comprised of deputies (as a secondary duty) who respond to large incidents to assist the Incident Commander in the organizing and operation of the incident. This could be hostage situations, hurricanes, or other natural and/or man made disasters and events. I have been with this team since its inception and have extensive training in incident command and disaster response, recovery, and mitigation.
You relate that in 2003, as a result of federal Urban Area Initiative funding, the Sheriff's Office accepted responsibility for the development, design, operation and maintenance of a Mobile Command Post which would be used by a number of local urban area agencies. In fulfillment of these responsibilities, the Sheriff's Office entered into a contract with MBF Industries for the construction of the vehicle.
Because of your experience with the Critical Incident Management Team, you write, you were brought into this project. In this capacity, you explain,
I was responsible for the design, research, writing of specifications, planning, oversight of manufacture, pre-delivery and delivery acceptance, coordination, integration, and training of personnel to operate the command post. I spent literally hundreds of hours researching chassis, work compartments, radio and telephone communications, camera systems, electronics integration, graphics, even cabinetry and carpeting. I authored the vehicle's specifications, and the final specifications and bid packet was approved by the chain of command before being submitted for the bid process.
Throughout the process I would continually conduct updated research and implement ideas and then confer with technical experts on the feasibility of my concepts. Once a draft of the various designs and systems was developed, I would brief my chain of command for final approval. Any major changes would also be approved by the chain of command before proceeding.
MBF, you advise, received the contract through a sealed competitive bid process and the Sheriff's Office took delivery of the vehicle on January 19, 2006. You write that you "conducted the initial implementation of maintenance, training, use, and response for the Command Post," ultimately turning over responsibility for the vehicle to the Emergency Management Unit. As of September 1, 2006, you relate, you have no responsibilities with respect to the vehicle, other than occasionally using it as a CIMT responder. You advise that MBF's warranty on the vehicle will expire on January 19, 2007, and that there are no service contracts with the company.
You relate that prior to delivery of the Mobile Command Post, you became aware that MBF's vehicle delivery driver was preparing to retire, and you inquired whether the company would consider allowing you to make such deliveries on a part time basis. Following delivery of the Mobile Command Post, you began work for the company and have since delivered a total of six vehicles. You have discontinued your activities for the company pending receipt of this opinion.
Section 112.313(7), Florida Statutes, provides:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.—(a) 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.
The first part of Section 112.313(7) prohibits a public officer or employee from having a contractual relationship with any business entity regulated by or doing business with her agency. It does not appear that MBF is in any way "regulated" by your agency.
We must next consider whether MBF's warranty on the Mobile Command Post constitutes "doing business" with the Sheriff's Office, a question we have not previously had occasion to consider. Although the term is not defined in the Code of Ethics, we have long held that a business entity is "doing business" with an agency where the parties have entered into a lease, contract, or other 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. CEO 04-7. A warranty is an incident to a contract of sale. Marini v. Town and Country Plaza Merchants Assoc., Inc., 314 So. 2d 180 (Fla. 1st DCA 1975). In the event of a failure by MBF to fulfill the terms of the warranty, the Sheriff's Office would have a legal cause of action against the company. This being the case, we find that MBF is "doing business" with the Sheriff's Office by virtue of its warranty on the Mobile Command Post, and your employment by the company would be prohibited by the first part of Section 112.313(7) until the expiration of the warranty on that vehicle.
Accordingly, we find that a conflict of interest would exist were you to be employed as a driver by MBF prior to the expiration of the warranty on the Mobile Command Post.
Would the conflict continue where the Sheriff's Office has purchased a second vehicle from the same manufacturer, where you had no involvement in the purchase?
Your question is answered in the negative.
You advise that in addition to the Mobile Command Post, the Sheriff's Office has contracted with MBF for an Explosive Ordinance Disposal vehicle. You write that you have not had, and do not anticipate having, any involvement with this project. The vehicle is set for delivery in April 2007, you advise, and will also come with a one-year warranty from MBF. You state the Sheriff's Office has no other contractual agreements with the company, although you indicate that you cannot rule out such a possibility.
Under the analysis advanced above, your agency would be "doing business with" MBF until the expiration of the warranty on the Explosive Ordinance Disposal Unit. However, we find that Section 112.316, Florida Statutes, applies here to negate any conflict arising from the second vehicle purchase. That Section provides:
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.
In past opinions we have recognized that Section 112.316 operates to negate conflicts in situations where a public officer or employee did not have public duties that he would be tempted to compromise in favor of his private interests or the private interests of his secondary employer (CEO 95-18) and have consistently 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 or her agency and business entity. CEO 97-8. For example, in CEO 95-18, we applied Section 112.316 to find no conflict where a county public health unit employee was a member of the board of directors of, and was briefly employed by, a nonprofit corporation contracting with her unit. As is the case here with respect to the second vehicle, the employee there played no role in developing specifications or criteria for the contract, played no role in awarding the contract, and had no public responsibility regarding the corporation's performance under the contracts.
You have represented that you had no involvement whatsoever with the process for the acquisition of the Explosive Ordinance Disposal Unit, and nothing in the materials you have submitted suggests that your job responsibilities will interface in any way with your responsibilities as a driver for the company. Under these circumstances, we are under the opinion that your employment with MBF as a driver would not interfere with the full and faithful discharge of your public duties.
Accordingly, we find that no conflict of interest would exist were you to be employed as a driver for MBF while that company is under contract with the Sheriff's Office to build an Explosive Ordinance Disposal unit.
ORDERED by the State of Florida Commission on Ethics meeting in public session on December 1, 2006 and RENDERED this 6th day of December, 2006.
Norman M. Ostrau, Chair