CEO 88-49 -- July 28, 1988

CONFLICT OF INTEREST

DEPARTMENT OF PROFESSIONAL REGULATION EMPLOYEE

WITH BOARD OF AUCTIONEERS OWNING AUCTION BUSINESS

To: Ms. Daryl Dempsey, Senior Clerk, Board of Auctioneers, Department of Professional Regulation (Tallahassee)

SUMMARY:

A prohibited conflict of interest would be created were an employee of the Department of Professional Regulation, whose duties involve working for the Board of Auctioneers, to own and operate an auction business which would be licensed by the Board. Section 112.313(7), Florida Statutes, prohibits a public employee from having any employment or contractual relationship with a business entity which is subject to the regulation of his agency.

QUESTION:

Would a prohibited conflict of interest be created were you, a senior clerk for the Board of Auctioneers of the Department of Professional Regulation, to own an auction business which would be run by a licensed auctioneer?

Your question is answered in the affirmative.

In your letter of inquiry you advise that currently you are employed by the Department of Professional Regulation as a Senior Clerk for the Board of Auctioneers. In that position, your duties include processing applications for licenses, handling correspondence and telephone inquiries, preparing agenda items for Board meetings, and any other clerical duties that may arise.

You also advise that you are interested in becoming an owner of an auction business. Although you would own the business, you would hire a licensed auctioneer to run it.

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), Florida Statutes (1987).]

This provision prohibits a public employee from having any employment or contractual relationship with a business entity which is subject to the regulation of his agency.

We previously have advised that the "agency" of a Department of Professional Regulation employee whose primary responsibilities relate to a particular board within the Department is that board. See CEO 79-78 and CEO 81-23. Therefore, we conclude that your "agency" for purposes of Section 112.313(7) is the Board of Auctioneers.

We also find that your ownership of an auction business would involve an employment or contractual relationship with a business entity which is subject to the regulation of the Board of Auctioneers. Auction businesses are required to be licensed by the Board, which has the authority to suspend or revoke licenses and to penalize licensees. See Sections 468.385(7) and 468.389, Florida Statutes. We note that any complaint about your auction business or about the auctioneer who would be hired to run the business would be decided by the Board for which you work, resulting in at least the appearance of a lack of impartiality on the part of the Board and other employees working for the Board which could taint the Board's proceedings. Similarly, in CEO 76-207 we advised that an attorney for the Real Estate Commission should not act as a real estate salesman or broker.

Accordingly, we find that a prohibited conflict of interest would be created were you to own an auction business while being employed by the Department of Professional Regulation as a Senior Clerk for the Board of Auctioneers.