CEO 76-28 -- February 13, 1976

CONFLICT OF INTEREST

STATE EMPLOYEE EVALUATING PROGRAMS OF OTHER STATES FOR FEDERAL GOVERNMENT

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

Prepared by: Bonnie Johnson

SUMMARY:

No prohibited conflict of interest under the Code of Ethics would be created were a state employee to do consulting work with the federal Department of Health, Education and Welfare relative to programs being developed in other states in his field of expertise. There is no violation of Fla. Stat. s. 112.313(7) (1975), for the state exercises no regulatory authority over a department of the federal government; nor is "business" transacted between the two. Florida Statute s. 112.313(8) is not breached, because the employee's expertise would not be utilized by another state agency or by any political subdivision of the state which would be bound by or directly related to state standards and regulations. Only where outside employment interferes or conflicts with one's public duty is it to be discouraged on an ethical basis. See Fla. Stat. s. 112.316 (1975). The Commission on Ethics exercises no jurisdiction, however, over ethics regulations unique to particular agencies of state government so long as the state code is not contradicted.

QUESTION:

Would a prohibited conflict of interest under the Code of Ethics for Public Officers and Employees exist were I, a state employee, to accept outside employment with the federal Department of Health, Education and Welfare (HEW) for which I would be called upon to evaluate programs of other states in my field of expertise?

Your question is answered in the negative.

It is our understanding, based upon your letter of inquiry, that you are employed by the State of Florida as a communications engineer with the Division of Communications, Department of General Services, your job responsibility being the establishment of the state's Emergency Medical Services Communications Program.

At the request of the federal Department of Health, Education and Welfare, you recently attended a meeting in Washington, D.C., at which time you offered your expertise in the emergency medical services communications field to evaluate the programs of other states requesting funds from HEW for the establishment of similar programs. Pursuant to HEW's subsequent interest in your serving in such capacity, you submitted to the Department of General Services, on its prescribed form, a request for outside employment. Your request was denied on the basis that the request contained no estimate of the time which would be involved, and specifications developed on state time and at state expense might be used for your personal benefit, thus potentially creating a conflict of interest.

Two provisions of the Code of Ethics for Public Officers and Employees could possibly apply to your situation. The first, dealing with conflicting employment, is as follows:

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 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. . . . [Fla. Stat. s. 112.313(7)(1975).]

The Florida Department of General Services exercises no regulatory power over the U.S. Department of Health, Education and Welfare; nor do the two agencies transact business within the connotation of that phrase for purposes of the Code of Ethics. Further, it does not appear that the employment would present a continuing or frequently recurring conflict, based on your estimation that the work would entail only "several random vacation days or weekends."

Perhaps more relevant to the instant situation is Fla. Stat. s. 112.313(8)(1975), which provides as follows:

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.

In a previous opinion of this commission, CEO 75-92 (copy enclosed), we advised that a violation of the above statute would exist were an employee of the Division of Recreation and Parks, Department of Natural Resources, to privately engage in consultation with counties or municipalities relative to proposed recreation facilities which may be financed by grants from the Department of Natural Resources -- proposals potentially subject to review by the petitioner/employee himself. In that situation, however, unlike the proposal described in your letter of inquiry, the outside employment was directly related to the petitioner's public employment; i.e., the employee's knowledge of state specifications for recreation facilities could be utilized privately for personal gain through advising others how to meet these specifications. Moreover, as we point out in this opinion, the employee's proposed outside employment would present a recurring conflict with his particular public responsibility of evaluating proposed recreation facilities.

In the situation you describe in your letter of inquiry, on the other hand, no such direct relationship exists. Your expertise in the field of emergency medical services communications would be utilized not by the state or any of its political subdivisions, but by other states or areas thereof, none of which are in any way bound by Florida standards or regulations. Consultation of necessity involves the imparting of expertise to another for his benefit. Only in instances where such consultation interferes or conflicts with one's public duty is it to be discouraged on an ethical basis. See Fla. Stat. s. 112.316(1975).

We wish to emphasize, however, that our jurisdiction extends only to the Code of Ethics for Public Officers and Employees as contained in part III, Ch. 112, F. S. We recognize and encourage the institution of ethics regulations within departments and political subdivisions of the state, for individual agencies have specific responsibilities which may require ethical codes of a particular nature. Therefore, while we find no violation of the Code of Ethics in the outside employment you propose, we lack jurisdiction to advise you concerning compliance with departmental ethics regulations or procedures.