CEO 79-21 -- March 22, 1979

CONFLICT OF INTEREST

CHIEF OF BUREAU OF CONSTRUCTION OF DEPARTMENT OF GENERAL SERVICES CONSULTING WITH POLITICAL SUBDIVISION AND PRIVATE BUSINESSES REGARDING CONSTRUCTION CONTRACT CLAIMS

To: (Name withheld at the person's request.)

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(7)(a), F. S. 1977 would prohibit an employee of the state Bureau of Construction, Department of General Services, from consulting with contractors who are doing work for the state and who would be subject to the regulation of the Bureau of Construction in the performance of their contract. However, the provision would not prohibit the Chief of the Bureau of Construction from consulting with political subdivisions or with private business whose work is not reviewed by the bureau, provided such consulting work would not be done on state time, as these business entities and agencies neither would be subject to the regulation of, nor doing business with, the bureau.

QUESTION:

Would a prohibited conflict of interest be created were I, the Chief of the Bureau of Construction of the Department of General Services, to consult with political subdivisions of the state or private businesses regarding construction contract claims?

Your question is answered in the negative, subject to certain conditions specified below.

In your letter of inquiry you advise that you are the Chief of the Bureau of Construction within the Department of General Services, Division of Building Construction and Property Management. According to your position description, you are responsible for the administration of the Bureau of Construction, which is responsible for the administration, management, and accountability for the construction of the majority of state facilities built for the State University System, the Department of Offender Rehabilitation, the Department of Health and Rehabilitative Services, and other departments as designated under appropriations bills of the Legislature. The bureau's responsibility runs from the initial planning of the projects through design and construction to the completion of the project, when it is turned over to the using agency for occupancy. As bureau chief, you supervise four sections within the bureau, which are responsible for: contracts, negotiation, preparation and administration, status control and monitoring and record maintenance; administration of architectural design planning and control; administration of engineering design planning and control and energy life-cycle analysis; and construction administration and control.

You further advise that you intend to provide consultant services in the area of construction claim analysis and defense for political subdivisions and private companies whose business is not related in any way to the business of the Division of Building Construction and Property Management. In a telephone conversation with our staff, you advised that this would involve acting as a claims consultant to assist counsel representing a political subdivision or a private company which has no relationship with the division regarding construction contracts litigation on such claims as damages for delays or extra expenses of construction. You also advised that the Department of General Services is not responsible for overseeing construction projects of political subdivisions or other local governmental entities, but that occasionally the department does become involved in projects jointly funded by the state and a political subdivision.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), F. S. 1977.]

It is our understanding that the consulting work you anticipate doing would be performed on your own time, using annual leave, and otherwise not during your regular working hours. The above-quoted provision would prohibit you from consulting with contractors who are doing work for the state and who would be subject to the regulation of the bureau in the performance of their contract. You have indicated that you do not intend to offer your services to private companies whose business is related in any way to the business of the division.

However, in our view, this provision would not prohibit you for consulting with political subdivisions or with private business whose work is not reviewed by the bureau, as these business entities and agencies would neither be subject to the regulation of, nor doing business with, the bureau. Nor do we perceive that such consulting services would create a continuing or frequently recurring conflict with the performance of your public duties or would impede the full and faithful discharge of those duties.

Accordingly, we find that no prohibited conflict of interest would be created were you to consult with political subdivisions of the state or private businesses regarding construction contract claims, subject to the limitations expressed above.