CEO 99-1 -- January 28, 1999

 

CONFLICT OF INTEREST

 

DEPARTMENT OF TRANSPORTATION ENGINEER EMPLOYED

PART-TIME WITH COMPANY CONTRACTING WITH DEPARTMENT

 

To:      Mark Herron, Attorney at Law (Tallahassee)

 

SUMMARY:

 

No prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where a FDOT engineer works secondarily for a company contracting with FDOT.  Based upon the engineer=s lack of FDOT responsibilities in regard to the company, Section 112.313(7)(a) is to be read in conjunction with Section 112.316, Florida Statutes.  CEO 88-58 is referenced.

 

QUESTION:

 

Does a prohibited conflict of interest exist under Section 112.313(7)(a), Florida Statutes, where an engineer for the Florida Department of Transportation is employed part-time by a company contracting with the Department?

 

Under the circumstances set forth herein, your question is answered in the negative.

 

By your letter of inquiry and additional information submitted to our staff,[1] we are advised that Donald E. Keenan (Aemployee@) serves as an area structures engineer for the Florida Department of Transportation (AFDOT@), a position in which he reviews and confirms the integration of the geometric, structural, geotechnical, hydrological, economical, and aesthetic components of the bridge-design process, and in which he performs plan review, development, and approval of certain consultant-design projects from initial concept to preparation of final contract documents.  In addition, you advise that the employee is secondarily employed part-time with an engineering company (Acompany@), regarding matters outside of Florida, participating in value engineering (AVE@) studies.[2]

Further, you advise that at least two contracts exist between FDOT and the company, one contract whereby the company is to provide ADistrict-wide Value Engineering Services@ and the other whereby the company is to provide AStatewide Value Engineering,@ but that the employee has neither responsibilities regarding the contracts nor any contact in behalf of  FDOT with the company.  Also, you advise that the employee did not participate in any way in the FDOT process that selected the company, and that the employee does not participate in any way in FDOT=s management of the contracts or FDOT=s evaluation of the company=s performance under the contracts.

Section 112.313(7)(a), Florida Statutes, provides:

 

CONFLICTING EMLOYMENT OR CONTRACTUAL RELATIONSHIP.CNo 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 or she 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 or her private interests and the performance of his or her public duties, or that would impede the full and faithful discharge of his or her public duties.

 

This statute, standing alone, would prohibit the employee=s secondary employment with the company, inasmuch as the company is doing business with the FDOT via the contracts.  However, the language of Section 112.313(7)(a) is tempered by the following provision of the Code of Ethics:

 

CONSTRUCTION.C 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 or her duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, Florida Statutes.]

 

We have applied Section 112.316 to negate apparent conflicts when the public officer or public employee had no public responsibilities regarding the interface between his secondary employer and his public agency, as you represent is the situation under your inquiry.  See, for example, CEO 88-58 (FDOT engineer holding contractual relationship with private consulting firms doing business with FDOT).  Therefore, we find that Section 112.316 applies and that the employee=s secondary employment with the company is not conflicting under Section 112.313(7)(a), under the scenario you put forth to us.[3]

However, if the employee=s scenario changes in a material way, you should contact us for further advice.

Accordingly, under the representations made to us, we find that the employee=s secondary employment with the company is not conflicting under Section 112.313(7)(a), Florida Statutes.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on January 28, 1999 and RENDERED this 2nd day of February, 1999.

 

 

 

__________________________

Charles A. Stampelos

Chair

 


[1]After the submission of your initial letter (dated August 11, 1998), there arose an issue as to whether there was a dispute concerning the factual basis underlying this opinion.  However, your letter dated November 25, 1998 and its accompanying documents apparently quiet any potential dispute as to the material facts submitted for our review.

[2]You state that VE studies involve a multi-discipline approach to certain engineering problems, and that the employee=s participation in these studies will transfer knowledge and technical experience to FDOT, inasmuch as other states approach engineering problems differently than FDOT.

[3]Please note that Section 112.326, Florida Statutes, recognizes an agency=s ability to adopt more stringent ethical standards for its employees than those contained in Section 112.313(7)(a) or other provisions of the Code of Ethics.