CEO 75-4 -- January 6, 1975

CONFLICTING EMPLOYMENT

INTERPRETATION OF THE TERM "SHALL ACCEPT" AS USED IN s. 112.313(5), F.S.

To: Shelton Kemp, Executive Director, Bicentennial Commission of Florida, Tallahassee

Prepared by: Gene L. "Hal" Johnson

SUMMARY:

Provisions prohibiting conflicting employment under s. 112.313(5), F. S., as amended by Ch. 74-177, Laws of Florida, are violated where Professor Samuel Proctor, a member of the Florida Bicentennial Commission, accepted an editorship offered by the University of Florida Press for a Bicentennial Commission book series prior to the effective date of the act. The law applies to the relationships between officials and those working under their supervision or control, not to the technical time sequence of when the conflicting employment began.

QUESTION:

Does the employment of Professor Proctor, a commission member, as editor of a series of books produced by the University of Florida Press (UFP), present a conflict of interest under s. 112.313(5), F. S., when the Bicentennial Commission has contracted with UFP for the production of this book series?

This question is answered in the affirmative.

The facts as set forth in your letter disclose that the Bicentennial Commission has undertaken a project to produce a facsimile series of historically significant out-of-print books. The commission has entered into an agreement with the University of Florida Press (UFP) whereby UFP will provide the technical assistance necessary for producing the series. Subsequent to this agreement, the press secured a University of Florida history professor, Dr. Samuel Proctor, to act as editor of the entire series of books.

The question you seek answered is whether the employment by UFP of Professor Proctor, who is also a Bicentennial Commission member, constitutes a conflict of interest on the part of Professor Proctor under s. 112.313(5), F. S., as amended by Ch.

74-177, Laws of Florida.

The pertinent conflict of interest provision states in part:

No public officer or employee of an agency shall accept other employment with any business entity subject to the regulation of, or doing business with, an agency of which he is an officer or employee . . . . [Section 112.313(5), supra.]

As a member of the Bicentennial Commission, Professor Proctor is a public officer within the meaning of that term as defined in s. 112.312(7)(b), F. S. Under the express language of the provision, the continuation of his employment as editor of the book series does in our opinion constitute a conflict of interest.

While it may arguably appear that the term "shall accept" has reference only to the initial acceptance of employment, such an interpretation cannot stand. The result would be that officers or employees having initially accepted the conflicting employment prior to the effective date of the act would be "grandfathered" in under the provision. It is the independent relationship between officials and those working under their supervision and control that the law seeks to foster. And this purpose cannot be thwarted by the technical time sequence of precisely when a conflict first arose. We do not believe that this was the legislative intent, nor do we think it is a reasonable interpretation of the terms of the law itself.

Accordingly, we must conclude that the continuation of existing employment constitutes acceptance under the terms of the above-quoted provision, s. 112.313(5), supra, and, therefore, Professor Proctor's position as editor of the UFP book series creates a prohibited conflict of interest under s. 112.313(5), supra.