CEO 90-30 -- April 26, 1990

CONFLICT OF INTEREST

DEPARTMENT OF ENVIRONMENTAL REGULATION

DISTRICT DEPUTY ASSISTANT SECRETARY SERVING AS

REAR COMMODORE OF YACHT CLUB SEEKING D.E.R. PERMIT

To: Robert V. Kriegel, Deputy Assistant Secretary, Department of Environmental Regulation, Northwest District (Pensacola)

SUMMARY:

No prohibited conflict of interest is created where a district deputy assistant secretary of the Department of Environmental Regulation is a member of and serves as Rear Commodore of a local yacht club which is seeking a permit from the Department. Membership in a yacht club is not generally the type of contractual relationship which would motivate the deputy secretary to disregard his public duties. However, he should remove himself from any decision of the Department regarding the club, or any decision by the club regarding permitting by the Department, in order to avoid potentially violating Section 112.313(6), Florida Statutes, and to avoid even the appearance of impropriety.

QUESTION:

Does a prohibited conflict of interest exist where you, a Deputy Assistant Secretary with the Northwest District of the Department of Environmental Regulation, serve as an officer in a private yacht club seeking a permit from the Department?

Under the described circumstances, your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that you are employed with the Department of Environmental Regulation as Deputy Assistant Secretary in the Northwest District. In this position, you oversee all of the licensing and regulatory functions conducted through your District office.

You also advise that you are a member of a local yacht club. You paid $340.00 for a membership certificate to the club. Were you to resign from membership you would return the certificate and the $340.00 would be refunded. In addition, you rent a boat slip from the club's marina. This year, you were elected to serve as Rear Commodore of the yacht club. In this uncompensated position, your primary responsibilities involve overseeing the yacht club's facilities.

You advise that the yacht club is in the process of expanding its marina capacity, which will require a permit from the Department of Environmental Regulation. That permit will be issued by the Bureau of Wetland Resource Management in Tallahassee. Your department also must regulate various activities of the yacht club related to construction, drainage into the waterway, and water quality. You advise that you have removed yourself from any regulatory issues affecting the yacht club. You question whether a conflict of interest is created by your relationship with the club.

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.

This provision prohibits a public officer from being employed by, or having a contractual relationship with, a business entity which is doing business with or is regulated by his agency. The yacht club clearly is regulated by your Department in the areas of permitting, drainage into the waterway, water quality, and construction. Technically, therefore, your contractual relationship with the club would appear to be prohibited by Section 112.313(7)(a), Florida Statutes.

We note, however, that Section 112.311(1), Florida Statutes, in expressing the legislative intent and policy for use in construing the Standards of Conduct for Public Officers and Employees, states:

It is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law. The public interest, therefore, requires that the law protect against any conflict of interest and establish standards for the conduct of elected officials and government employees in situations where conflicts may exist.

Section 112.311(5), Florida Statutes, states:

It is hereby declared to be the policy of the state that no officer or employee of a state agency or of a county, city, or other political subdivision of the state, and no member of the Legislature or legislative employee, shall have any interest, financial or otherwise, direct or indirect; engage in any business transaction or professional activity; or incur any obligation of any nature which is in substantial conflict with the proper discharge of his duties in the public interest. To implement this policy and strengthen the faith and confidence of the people of the state in their government, there is enacted a code of ethics setting forth standards of conduct required of state, county, and city officers and employees, and of officers and employees of other political subdivisions of the state, in the performance of their official duties. It is the intent of the Legislature that this code shall serve not only as a guide for the official conduct of public servants in this state, but also as a basis for discipline of those who violate the provisions of this part.

These provisions indicate that the Code of Ethics is directed at situations where a public employee is engaging in private business transactions or professional activities, or is incurring private obligations which impede the public employee in fulfilling, or conflict with, his public duties. It does not appear that membership in a social or recreational club is the type of contractual relationship which would involve a public employee's personal business interests or obligations; nor is it the type of relationship which is likely to tempt him to place personal interests above those of the public. Therefore, we are of the opinion that Section 112.316, Florida Statutes, should be applied to the situation as described. Section 112.316 states:

CONSTRUCTION.--It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved.

We bring to your attention, however, Section 112.313(6), Florida Statutes, which provides:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

Any attempt to use your official position to obtain a benefit or regulatory exemption for your yacht club could constitute a violation of this provision. We therefore suggest that to avoid even the appearance of impropriety you, continue to remove yourself from involvement with regulatory decisions by the Department of Environmental Regulation concerning the yacht club, as well as from any decisions by the club concerning the permitting process or any regulatory activity by the Department of Environmental Regulation.

Accordingly, under the circumstances described, we find that you are not prohibited by the Code of Ethics from serving as an officer in the yacht club while remaining employed by the Department of Environmental Regulation.