CONFLICT OF INTEREST

DEPUTY SHERIFF SELLING HIGH-VISIBILITY BADGE HOLDERS
TO SHERIFF’S OFFICE

To: Ms. Kirby Oberdorfer, Esq., Office of Ethics, Compliance & Oversight (Jacksonville)

SUMMARY:

Due to applicability of the “sole source” exemption in Section 112.313(12)(e), Florida Statutes, a prohibited conflict of interest would not be created under Section 112.313(3) or 112.313(7)(a), Florida Statutes, were a deputy sheriff to sell to the sheriff’s office a particular product from a company that he co-owns. CEO 16-8 and CEO 16-7 are referenced. ¹

QUESTION:

Would a prohibited conflict of interest be created if a deputy sheriff were to sell, through a company he co-owns, high-visibility badge holders to the sheriff’s office where he is a deputy?

Under the circumstances presented, your question is answered in the negative, due to applicability of the “sole source” exemption.

In your letter of inquiry, as the Deputy Director of the Office of Ethics, Compliance & Oversight for the consolidated City of Jacksonville, you ask, on behalf of a Deputy Sheriff of the Jacksonville Sheriff’s Office, whether sale by the officer, through a company he co-owns, of a particular product to the Sheriff’s Office would create a prohibited conflict of interest under the Code of Ethics for Public Officers and Employees. You state that the officer co-owns with his father (also a Sheriff’s Deputy) a company which markets law enforcement equipment, including high-visibility badge holders that the company is considering offering for sale to the Sheriff’s Office.

As you have noted in your inquiry, your scenario implicates Sections 112.313(3) and 112.313(7)(a), Florida Statutes. Section 112.313(3) states:

DOING BUSINESS WITH ONE’S AGENCY.—No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer’s or employee’s spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer’s or employee’s spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer’s or employee’s own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she is serving as an officer or employee of that political subdivision.

The first part of Section 112.313(3) prohibits a public officer from buying realty, goods, or services from a business of which he (or his spouse or child) is an officer, partner, director, or proprietor. Under the facts you have presented, this part of the provision would not apply to the officer’s situation, in that the officer does not have any public capacity role in purchasing equipment or products for the Sheriff’s Office. However, the second part of Section 113.313(3), absent application of an exemption, would prohibit the officer from acting in his private capacity (e.g., as an owner of a company) to sell goods, services, or realty to the Sheriff’s Office.

Further, the proposed sale of the officer’s company’s product to the Sheriff’s Office implicates Section 112.313(7)(a), Florida Statutes, which provides:

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 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.

Section 112.313(7)(a) would prohibit the officer from having any employment or contractual relationship with a business entity doing business with his agency. If the officer’s company were to sell the high-visibility badge holders to the Sheriff’s Office, the officer would have a contractual relationship with a business entity (e.g., his company) doing business with (selling to) his agency (the Sheriff’s Office). Absent applicability of an exemption, he would have a prohibited conflict under Section 112.313(7)(a).

However, an exemption in Section 112.313(12)(e), Florida Statutes,² regarding sole source of supply, would apply to negate the Section 112.313(3) and 112.313(7)(a) prohibitions if the officer’s company is the sole source of supply of this particular type of badge holder within the consolidated City of Jacksonville/Duval County (the officer’s political subdivision) and if the officer fully discloses his interest prior to the transaction. CE Form 4A (Part B) has been promulgated for this purpose. CEO 16-8. You indicate that the high-visibility badge holder, designed to enhance safety for off-duty and plainclothes law enforcement officers, is made of injection-molded plastic with a bright neon-yellow background color and is attached to a particular type of lanyard cord that is worn around the neck. You state that, to the best of the officer’s knowledge, his company is the only producer of this type of high-visibility law enforcement badge holder in the United States and that no other stores or vendors in Duval County stock this particular badge holder. Therefore, for this product, if it is determined by the Sheriff’s Office to be the only such product that meets its needs, the exemption is available to negate the conflicts presented. See CEO 16-7, in which we recognized the importance of such a determination by an agency for applicability of the sole source exemption.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 9, 2018, and RENDERED this 14th day of March, 2018.

____________________________________

Michelle Anchors, Chair

^[1]Opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).

^[2]Section 112.313(12)(e), Florida Statutes, provides:

EXEMPTION.—. . . In addition, no person shall be held in violation of subsection (3) or subsection (7) if: (e) The business entity involved is the only source of supply within the political subdivision of the officer or employee and there is full disclosure by the officer or employee of his or her interest in the business entity to the governing body of the political subdivision prior to the purchase, rental, sale, leasing, or other business being transacted.