CEO 86-62 -- September 17, 1986

CONFLICT OF INTEREST

COUNTY BUILDING DEPARTMENT EMPLOYEE ENGAGED IN BUILDING CONSTRUCTION

To: Mr. Charles Pattison, Director, Monroe County Building, Planning and Zoning Department

SUMMARY:

A prohibited conflict of interest exists where a planner/draftsman with a county building, planning and zoning department is privately engaged in the building industry as a general contractor within the county. Section 112.313(7), Florida Statutes, prohibits a public employee from engaging in private employment which is subject to the regulation of his agency. However, the individual could work as a general contractor in geographic areas outside of the jurisdiction of the building department. CEO's 81-9, 79-41, 78-87, and 76-42 are referenced.

QUESTION:

Does a prohibited conflict of interest exist where a planner/draftsman with a county building, planning and zoning department is privately engaged in the building industry as a general contractor within the county?

Your question is answered in the affirmative.

In your letter of inquiry you advise that Mr. John Lobato is employed as a Planner/Draftsman by the Monroe County Building, Planning and Zoning Department and works within the building section of the Department. That section reviews plans for compliance with the standard building code, issues building permits, and conducts on- site inspections to monitor construction in order to ensure that structures meet the building code.

The Planner/Draftsman does not review building plans himself, and neither does the only employee who directly reports to him. His job duties consist of drafting work required internally by the Department and coordinating the review of proposed subdivisions in order to ensure that proposed plats meet the requirements of law. However, he is in direct daily contact with the individuals who review building permit applications and who conduct on-site inspections. In addition, for a period of three months during the last year, he served as acting director of the building section of the Department and in that capacity had direct, supervisory control over the employees who review applications and make inspections. Upon the hiring of a permanent director, the Planner/Draftsman was returned to his previous position.

Finally, you advise that the Planner/Draftsman is a State certified general contractor who is allowed to construct most types of structures. He currently has outstanding County building permits for two single-family homes and a duplex.

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 (1985).]

In previous opinions we have advised that this provision prohibits a public employee from engaging in private employment which is subject to the regulation of his agency. Thus, in CEO 81-9 we advised that a town building official would be prohibited from doing business as a building contractor within the town. As we noted in CEO 76-42, "obviously, one involved in the building industry is subject to the regulation of the building department." Further, in CEO 79-41 we advised that a county plumbing and gas inspector would be prohibited from performing electrical contracting work inspected by his agency, in part because although he was not in a position to inspect his own electrical work, that work still would be inspected by another member of his agency.

As the private construction work of the subject Planner/Draftsman must be permitted and inspected by the Building, Planning and Zoning Department, and in particular by the building section within which he is employed, we find that his private employment is subject to the regulation of his agency. We are of the opinion, however, that the Planner/Draftsman would not be required to place his State license in an inactive status. As we observed in CEO 78-87, the Code of Ethics would not prohibit his acting as a general contractor or subcontractor in areas outside of the County or in areas within the County which would not be within the jurisdiction of the County Building Department, such as municipalities.

Accordingly, we find that the Code of Ethics prohibits the subject Planner/Draftsman from privately engaging in the building industry as a general contractor within areas of the County over which the Building, Planning and Zoning Department has jurisdiction.