CEO 79-47 -- July 19, 1979

CONFLICT OF INTEREST

TOURIST RESEARCH ADMINISTRATOR WITH DEPARTMENT OF COMMERCE CONSULTING WITH FOREIGN GOVERNMENT TO PREPARE TOURISM MARKETING STRATEGY

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(7)(a), F. S. 1977, prohibits a public employee from having any employment which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties or which impedes the full and faithful discharge of his public duties. This provision is deemed to be violated when the Tourist Research Administrator with the State Department of Commerce consults privately with the Bahamas Ministry of Tourism to provide analysis and interpretation of department data for the purpose of preparing a tourism marketing strategy which would promote combination Florida/Bahamas travel. In spite of assurances that the state and the Bahamas will benefit mutually from the project, the Bahamas nevertheless competes with the state to some degree for tourist dollars. Furthermore, if the project is to be mutually beneficial, the state, through its Department of Commerce, is in a position to offer its aid to the Bahamas. For a state employee to benefit privately from a situation in which his state could participate officially suggests the possibility of or potentiality for an employee's diverting agency-related business to himself for private gain, in violation of s. 112.313(6) and (8), F. S. 1977.

QUESTION:

Does a prohibited conflict of interest exist when I, the Tourist Research Administrator for the Division of Tourism of the Department of Commerce, provide consulting services for a foreign government to assist that government in preparing a tourism marketing strategy?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you are the Tourist Research Administrator for the Department of Commerce's Division of Tourism. You also advise that the primary function of your section, the Office of Marketing and Research, is to compile data profiling the out-of-state visitors who choose Florida for their vacations. Data compiled over the past 5 years forms the basis for reports which are prepared routinely by the office for assistance in the state's marketing plans and for dispersal to private tourism interests throughout the state to enable them to prepare their particular marketing strategies.

In addition, you advise, special interest groups request cross tabulations of the data collected by the division in order to define more specifically their individual areas of concern. One of your responsibilities, then, is to establish the relevant cross tab selections in response to these requests. A computer printout of this cross tab is forwarded to the individual requesting it, upon payment of the costs involved.

In your letter of inquiry and in a telephone conversation with our staff, you further advise that some groups receiving a cross tabulation are unable to interpret the data meaningfully. When these groups are state or local agencies, the division attempts to assist them in the interpretation of the requested data, as time permits.

Recently, the Bahamas Ministry of Tourism requested a cross tabulation and an analysis of tourism data for the stated purpose of promoting vacation packages which combine visits to the Bahamas with Florida visits. Feeling that you could not devote time to a foreign government at the expense of Florida taxpayers, even though the proposed vacation package also would be beneficial to the state, you offered your services to the ministry as a consultant, to assist the Bahamas Ministry of Tourism in preparing an in-depth marketing strategy analysis from the data provided by the division. You advise that the Ministry of Tourism is being billed directly for its costs in providing the required data, as any group or agency would be billed for such services. After receiving the cross tabulation in the form of a printout, you have provided services to the ministry while on annual leave and during evenings and weekends, which services include designing an appropriate report format and extracting the pertinent figures from the printout. Upon completion of the division's 1979 reports, you also will forward a detailed interpretation and analysis of the 1979 data to the Bahamas.

In a conversation with our staff, you advised that there are some private firms which could provide similar services, which primarily require insight and experience in the travel market. In addition, you advised that your background consists of 10 years' experience in advertising sales and market research for tourist-dependent businesses. Thus, you agreed that the expertise necessary to provide the requested consultation, though not necessarily dependent on your state employment, is enhanced by your experience in your present position and is assisted by your familiarity with the division's data.

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, 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 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.]

The first portion of this provision prohibits a public employee from being employed by either a business entity or an agency which is doing business with his agency. While the Bahamas Ministry of Tourism might be considered to be doing business with the Division of Tourism when it requests and pays for a cross tabulation from the division, the Ministry of Tourism is neither a "business entity" nor an "agency" as those terms are defined in the Code of Ethics. See s. 112.312(2) and (3), F. S. 1977.

The second portion of s. 112.313(7)(a), above, prohibits a public employee from having any employment which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties or which impedes the full and faithful discharge of his public duties. We are of the view that this provision of the law is violated by virtue of your contract with the Bahamian government. In support of this finding, we note that in spite of assurances that the anticipated vacation packages will promote combination Florida/Bahamas travel, the Bahamas nevertheless competes with this state to some degree for tourist dollars. Furthermore, if the vacation package proposed by the Bahamas will, in fact, serve to generate additional tourism to Florida, it would appear that the state, through its Department of Commerce, would offer its aid to the Bahamas, based on the mutual benefit to be derived. For a state employee to benefit privately from a situation in which his state could participate officially suggests the possibility of, or the potentiality for, an employee's diverting agency-related business to himself for private gain. In this regard, we find no documentation in the file which reflects that the division refused to assist the Bahamas Ministry of Tourism in analysis and interpretation of the data or that it was the ministry which initiated the proposal that you provide consultation services in your private capacity. In fact, you write in your letter of inquiry that you requested permission from your supervisor "to offer consultation to the Bahamas."

While we cannot say in an advisory opinion that your actions constitute a corrupt misuse of public position in violation of s. 112.313(6), F. S., we do recognize in this situation the potential for such misuse. At the very least, there is the appearance that public position has been used for private gain, particularly because the raw data utilized is a product of your agency and the expertise required for interpretation of that data was derived in large part from your state job. Relative to the use of agency resources, the Code of Ethics further provides as follows:

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 official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), F. S. 1977.]

Whereas the computer printout data clearly is a matter of public record, information that the Bahamas Ministry of Tourism would need interpretation of that data was not generally known outside of the Division of Tourism. In other words, the uniqueness of your position affords you direct access to the data, direct experience in interpreting it, and direct knowledge of an existing market for such analysis and interpretation.

Accordingly, we find that your consultation services to the Bahamas Ministry of Tourism, as described above, constitute an employment or contractual relationship that conflicts with the full and faithful discharge of your public duties, in violation of s. 112.313(7), F. S. 1977, and further constitute use of agency information for private gain in violation of s. 112.313(8).