CEO 93-3 -- March 11, 1993
CONFLICT OF INTEREST
COUNTY SOLID WASTE DIRECTOR PREPARING
COUNTY'S LANDFILL MINING SPECIFICATIONS AND INVOLVED
IN BUSINESS ENTITIES OPERATING LANDFILLS IN OTHER STATES
To: Mr. Robert E. Fahey, Collier County Solid Waste Management Director (Naples)
No prohibited conflict of interest would be created under Sections 112.313(7)(a) or 112.313(8), Florida Statutes, where a County Solid Waste Director prepares specifications for the privatization of the County's landfill mining operations and where he is also an officer of and a consultant to business entities involved in landfill mining operations in other states. The business entities involved would not be doing business with or regulated by the County, and the Director would not reveal information about the landfill mining process or the County's solicitation that is not also available to the general public. CEO 89-1 is referenced.
Would a prohibited conflict of interest be created where you, a county solid waste director, are responsible for the development of the proposal and specifications to privatize the county's landfill mining activities while business entities in which you are involved are operating or seeking to operate landfills in other states?
Your question is answered in the negative.
We are advised through your letter of inquiry and in subsequent correspondence with our staff that you serve as the Director of the Collier County Solid Waste Department and are responsible for an innovative landfill mining project which functions to demonstrate the potential benefits of reclaiming landfills. In CEO 89-1, we acknowledged that this landfill mining process was the result of expertise and experience you had acquired outside your employment with the County, and we concluded that the fact that you had used your education and experience to develop a method of waste management which benefited the County did not prohibit you from acquiring a patent on the process. CEO 89-1 also held that you could contract to sell your patent rights to a private company and consult with that company to provide any improvements you devised to the landfill mining process.
Since the rendering of that opinion, you advise, no patent has yet been issued for the landfill mining process, and the consulting contract discussed in CEO 89-1 was terminated at the end of its one year commitment. However, you advise that you have subsequently have formed a company which has contracted with a county in Mississippi to reclaim and operate its landfill and that you also are a consultant to a Kentucky firm which is seeking to contract with a community in Alabama to reclaim and operate its landfill. You indicate that you are requesting this opinion because Collier County is seeking to privatize its landfill mining operation and that you are the person responsible for preparing the specifications and eliciting the proposals to accomplish this task. Thus, you question whether a conflict of interest is created by this situation.
The applicable provisions of the Code of Ethics for Public Officers and Employees are Sections 112.313(7)(a) and 112.313(8), Florida Statutes, which provide:
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), Florida Statutes (1991).]
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), Florida Statutes (1991).]
The first of these two statutory provisions, Section 112.313(7)(a), Florida Statutes, prohibits you from having an employment or contractual relationship with a business entity which is subject to the regulation of, or is doing business with, Collier County. It also prohibits you from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between your private interests and the performance of your public duties, or which impedes the full and faithful discharge of your public duties.
You have indicated that neither of the business entities you are involved in, either as an officer of or consultant to, would have any involvement in any activity in Collier County while you are employed with the County. Thus, there does not appear to be any conflict of interest under the first portion of Section 112.313(7)(a), Florida Statutes, where you draft specifications for proposals to privatize the County's landfill mining operation. Nor does there appear to be a conflict of interest under the second portion of Section 112.313(7)(a), Florida Statutes, where your activities with the two companies are undertaken outside of your employment responsibilities with the County. Accordingly, there does not appear to be a conflict of interest under Section 112.313(7)(a), Florida Statutes, through your participation in the two business entities' out-of-state activities.
Section 112.313(8), Florida Statutes, prohibits you from disclosing or using information not available to the general public and gained through your public position for your personal gain or benefit or for the personal gain or benefit of any other person or business entity. This provision would be violated if you disclosed information about the landfill mining process or the County's solicitation of proposals which was not available to the general public. Regarding the landfill mining process, you have indicated that all information about the process is totally available to anyone requesting it, and there is no suggestion that you have revealed information about the County's solicitation of proposals to privatize the landfill mining operation to any other person or business entity for their personal gain or benefit. Thus, Section 112.313(8), Florida Statutes, does not appear to be implicated by your actions.
Accordingly, we find that no prohibited conflict of interest would be created were you to prepare specifications for proposals to privatize the County's landfill mining operations while business entities you are involved with are operating landfills in other states.