CEO 81-83 -- December 18, 1981

CONFLICT OF INTEREST

SOIL AND WATER CONSERVATION DISTRICT EMPLOYEE CONSULTING WITH WATER AUTHORITY

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

SUMMARY:

No prohibited conflict of interest would be created were an employee of a soil and water conservation district to consult with a local water conservation and control authority which has entered into a cooperative study agreement with the district. As the employee's agency, the conservation district, is a separate political subdivision from the water authority, the employee would not be selling his services to his own agency. In addition, under the circumstances presented, the employee would not be contracting with an agency which is subject to the regulation of, or is doing business with, his agency.

QUESTION:

Would a prohibited conflict of interest be created were an employee of a soil and water conservation district to consult with a local water conservation and control authority which has entered into a cooperative study agreement with the district?

Your question is answered in the negative.

In your letter of inquiry you advise that .... is an employee of the Lake County Soil and Water Conservation District, which has been created pursuant to Chapter 582, F. S. In addition, you advise that the District has entered into an agreement with the County, a municipality, and the Oklawaha Basin Recreation and Water Conservation and Control Authority to conduct a study of wetlands located in the County. The Authority, you advise, has been created as a special taxing district by Chapter 29222, Laws of Florida (1953). Under the agreement, each of the contracting agencies has agreed to provide services or funds for the study, with the District agreeing to provide the services of .... as director of the study. Presently, .... duties include carrying out the work of the study and reporting to the executive committee of the study group, which is composed of representatives from the District, the Authority, the County, and the Municipality.

In addition, you advise that the District provides funds for Authority projects, such as water control structures, through federal funding sources. Thus, the Authority must apply to the District for approval of the projects in order to obtain federal funding. Finally, you advise that .... proposes to do consulting work for the Authority in connection with a river basin water management plan proposed by the Authority.

The Code of Ethics for Public Officers and Employees provides:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), F. S.]

This provision prohibits a public employee from acting in a private capacity to sell any services to the agency which employs him. However, this provision does not apply because the subject employee's agency is the District and he would be selling his services to the Authority, which is a separate entity. See Section 112.312(2), F. S., defining the term "agency."

The Code of Ethics also 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 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.]

This provision prohibits a public employee from having a contractual relationship with an agency which either is subject to the regulation of, or is doing business with, his agency. In our view, the Authority is not subject to the regulation of the District, as each is an independent political subdivision. The fact that the Authority must apply for federal funds through the District does not indicate that the Authority is regulated by the District. Nor do we find that the two agencies are "doing business with" each other by virtue of the agreement between them which provides for the water study. In previous opinions, we have advised that contracts between governmental agencies for the provision of services are not contemplated by this statutory language. CEO 76-2 (Question 10), CEO 76-77, CEO 80-5, and CEO 81-5.

Accordingly, we find that no prohibited conflict of interest would be created were the subject Soil and Water Conservation District employee to consult with the Water Conservation and Control Authority.