CEO 79-30 -- May 17, 1979

CONFLICT OF INTEREST

EMPLOYEES OF HISTORIC PRESERVATION BOARD CONSULTING WITH ENTITIES OUTSIDE JURISDICTION OF THE BOARD

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

Prepared by: Phil Claypool

SUMMARY:

Subject to certain guidelines, no prohibited conflict of interest would be created were a professional historian or archaeologist employed by a historic preservation board to accept compensation from entities other than the state for professional services performed with regard to areas outside of the geographical limits of the board's authority. Under the provisions of s. 112.313(7), F. S., the subject board employees would be prohibited from being employed by a business entity or an agency which either is doing business with the preservation board or is subject to its regulation, and further would be prohibited from having any employment which would create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of their public duties. None of the consulting activities proposed in the letter of inquiry would appear to violate that standard of the Code of Ethics. Should a specific situation arise which would pose the potential for conflict, however, the petitioners are encouraged to seek an additional opinion in that regard.

QUESTION:

Would a prohibited conflict of interest be created were a professional historian or archaeologist employed by the Historic St. Augustine Preservation Board to accept compensation from entities other than the state for professional services performed outside of the geographic limits of the board's authority?

In your letter of inquiry you advise that you are the Director of the Historic St. Augustine Preservation Board, which has been created within the Department of State to preserve, protect, restore, and maintain the historic and antiquarian resources of St. Augustine and its vicinity. You further advise that you are a professional historian with a Ph.D. degree; two other board members also have professional degrees and certification in the field of history and archaeology, acquired prior to their employment with the board.

You question whether you may accept compensation from entities other than the State of Florida for consulting services (performed outside the geographic limits of the preservation board's authority) as historians or archaeologists. Examples of the professional services which might be rendered could include the following:

1. The research and writing of articles or books, for private publication;

2. Directing or conducting a survey of the historical and archaeological resources of a city or other corporate entity not located within St. Johns County;

3. Studies regarding the impact upon the historical, cultural, or archaeological resources or recognized historic districts of proposed private developments in areas outside of St. Johns County; or

4. Studies regarding requests for certification of the historical significance of buildings for federal tax purposes, performed for a private individual or entity and concerning property outside of St. Johns County.

Finally, you advise that these services would be performed on your own time and would not conflict with or impose upon your service to the board.

The jurisdiction of the Historic St. Augustine Preservation Board of Trustees is limited to the City of St. Augustine and surrounding territory. Section 226.01, F. S. 1977. You advise that the board traditionally has regarded its authority as lying within the boundaries of St. Johns County and has never directed or sponsored preservation activity outside of the city limits of the City of St. Augustine, although plans envisage historical and archaeological research in outlying areas of the county.

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.]

The first clause of this provision would prohibit you from being employed by an agency which is doing business with the preservation board or is subject to the regulation of that board. We previously have advised that one agency does business with another agency by extending a grant to that agency. See CEO 77-65. Otherwise, it does not appear that there would be any governmental agencies located outside of St. Johns County which could be deemed to be doing business with the preservation board. An examination of the board's powers, as expressed in s. 266.06, F. S. 1977, leads us to the conclusion that there are no agencies outside of St. Johns County which would be subject to the regulation of the board.

Section 112.313(7)(a) also would prohibit you from contracting with a business entity which is either subject to the regulation of the preservation board or which is doing business with the board. Because of the geographical limitations on the authority of the board, it does not appear that there would be any business entity subject to the regulation of the board which would be located outside of St. Johns County. You have provided no information which would indicate that any of the business entities with which you might contract either are or are not doing business with the board, so we merely observe that this prohibition would limit those private entities with which you could contract.

The above-quoted provision also would prohibit you from having any employment or contractual relationship that would create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of your public duty. In our view, so long as your consulting activities are provided on your own time, without the use of the facilities or the materials of the preservation board, and for entities located outside of St. Johns County, none of the professional services you have cited would lead to a frequently recurring conflict of interest or would impede the full and faithful discharge of your public responsibility.

The Code of Ethics also provides:

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), F. S. 1977.]

In your letter of inquiry you advise that the professional degrees and requisite knowledge which qualify you to perform your proposed consulting services, and enable you to meet the federal and state requirements for professional standing, were acquired at your own expense prior to your employment with the preservation board. Thus, it appears that there would be no question of your disclosing or using information gained by reason of your official positions for your private benefit.

Accordingly, we find that, subject to the general guidelines expressed in this opinion, no prohibited conflict of interest would be created were a professional historian or archaeologist employed by the preservation board to accept compensation from entities other than the state for professional services performed with regard to areas outside of the geographical limits of the board's authority. Should a specific situation arise which you feel might present a conflict of interest under the general guidelines of this opinion, we encourage you to seek an additional opinion regarding your employment with that particular agency or business entity.