CEO 79-24 -- April 18, 1979
(CEO 78-65 revoked)
CONFLICT OF INTEREST
COUNTY ENGINEER PRIVATELY REPRESENTING CLIENTS BEFORE COUNTY COMMISSION
To: (Name withheld at the person's request.)
Prepared by: Phil Claypool
In CEO 78-65 it was found that a county engineer was an independent contractor, rather than a part-time county employee, based on a number of factors, including information received from the county engineer that the board of county commissioners was in the process of changing his method of compensation from that of a part- time employee with income tax and social security deductions to a monthly lump sum payment without deductions. Later inquiry by the county attorney reveals that the board of county commissioners made no such change, and the county attorney therefore questions whether the misstatement of facts relative to CEO 78-65 is sufficiently material to alter the result of that opinion. It is found to be, and CEO 78-65 is revoked. In view of the fact that the subject engineer is designated as county engineer, and in further view of his being compensated as a part-time county employee, he is deemed to be a public employee of the county rather than an independent contractor and therefore is subject to the requirements and restrictions of the Code of Ethics for Public Officers and Employees.
As a public employee subject to the Code of Ethics, the county engineer is deemed to have a conflict of interest under s. 112.313(7), F. S., when he represents private clients in land development matters before the board of county commissioners which employs him. Reference is made to CEO's 76-2A, 76-113, and 77-81, the principle underlying which is that no public officer or employee should be in a position to pass upon or make recommendations regarding his private work or the work of his associates.
1. Is the county engineer for my county a public employee, subject to the standards of conduct provisions of the Code of Ethics for Public Officers and Employees, when he has been hired by the county as a consulting engineer with a private practice, but is paid as a part-time county employee?
2. Does a prohibited conflict of interest exist when a county engineer represents private clients in land development matters before the board of county commissioners which employs him?
Question 1 is answered in the affirmative.
In your letter of inquiry you refer to a situation which was the subject of a previous advisory opinion, CEO 78-65. You advise that, although we were informed, in regard to that opinion, that the Board of County Commissioners of Okeechobee County was in the process of changing the method of compensation of its county engineer from that of a part-time employee with income tax and social security deductions to that of a monthly lump sum payment without deductions, this in fact was not done.
You question whether this misstatement of facts is sufficiently material to alter the result of that opinion. We find that it is.
The contract between the county and the county engineer is a personal contract between him, as a professional engineer, and the county; it is not between his consulting engineering company and the county. The county engineer, in his correspondence, referred to himself as a part-time employee and advised that he is paid by the county in the same manner as it pays its part-time employees. While he is paid a specified amount each month, based upon the budgetary amount set for the county engineer by the county commission, his monthly check contains deductions for income and social security taxes. Like part-time county employees, he accrues no vacation time or sick leave benefits, but he is entitled to retirement benefits and has insurance which is paid through the county. The fact that a company extended retirement and insurance benefits to an employee, and also deducted income and social security taxes from that employee's compensation, has been held to negate the independence of the relationship between that company and its employee. Little v. Poole, 182 S.E.2d 206 (N.C. App. 1971). Thus, these factors strongly suggest that the county engineer is presently an employee of the county rather than an independent contractor.
In view of the fact that he is designated as county engineer, in which capacity he advises the county and represents it as liaison with other governmental agencies, and further in view of his being compensated as a part-time employee of the county, we are of the opinion that he is a public employee of the county rather than an independent contractor. Had his relationship with the county been intended to be that of an independent contractor, it easily could have been structured in such a manner.
Accordingly, we find that the county engineer of Okeechobee County is a public employee subject to the requirements and restrictions of the Code of Ethics for Public Officers and Employees, as contained in part III, Ch. 112, F. S. In addition, we hereby revoke CEO 78-65.
Question 2 is answered in the affirmative.
In the letter of inquiry and in subsequent correspondence pertaining to CEO 78-65, we were advised that the county engineer of Okeechobee County has a private consulting engineering practice, a sole proprietorship. We also were advised that the work he has performed for private clients in Okeechobee County has been in land development, for which the written subdivision regulations of the county set forth guidelines for each engineering calculation, with the calculations reflected in the actual construction design. Thus, in private work presented to the board in an official meeting, he is questioned by the chairman in detail relative to whether the proper regulations are complied with and is asked many other questions about, for example, location, zoning, special conditions, ownership, surrounding property ownership, and approvals needed from other agencies.
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.]
This provision prohibits a public employee from having a contractual relationship with a business entity which is subject to the regulation of his agency and from having a contractual relationship that will create a continuing or frequently recurring conflict between his private interests and his public duties.
In a previous advisory opinion, we have found that this provision prohibits a city engineer from acting as a consultant on a project within his city, such as a subdivision plan, which must be approved by the city engineering department. Commission on Ethics Opinion 77-81. Similarly, we have found that a county engineer is prohibited from being employed by an engineering firm which privately does work subject to the approval of the county engineer. Commission on Ethics Opinion 76-2A. See also CEO 76-113. The principle underlying these cases is clear -- no public officer or employee should be in a position to pass upon or make recommendations regarding his private work or the work of his associates. Despite the fact that such a person's deliberations and recommendations may be honest and free from corruption, the results of his work are inherently suspect because of the conflict of interest that underlies his decisions.
Accordingly, we find that the Code of Ethics for Public Officers and Employees prohibits the Okeechobee County engineer from serving in that position while he privately represents clients in land development matters before the Okeechobee County Board of County Commissioners.