CEO 74-63 -- November 15, 1974

STANDARDS OF CONDUCT

PROPRIETY OF CITY COUNCILMAN SELLING MERCHANDISE TO THE CITY HE REPRESENTS

To: David T. Price, Attorney, Ft. Lauderdale

Prepared by: Gene L. "Hal" Johnson

SUMMARY:

Section 112.313(2), F. S., as amended by Ch. 74-177, Laws of Florida, prohibits a public officer who owns a material interest in any business entity from doing business with the agency of which he is an officer unless the business is contracted through public competition and award is made on a lowest or best bid basis. Mr. Thomas Pacchioli is a Lauderhill city councilman who owns a material interest in a hardware store. Sale of merchandise by him or his hardware store to the city would constitute a violation of the above section unless his hardware sales are submitted to competitive public bidding.

QUESTION:

May Mr. Pacchioli, a councilman for the City of Lauderhill who owns a hardware store, sell merchandise to the City of Lauderhill?

Under provisions of part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida, the Florida Legislature reversed a long- standing policy of the State of Florida and the common law which prohibited absolutely a public officer from entering into a business transaction in his official capacity with himself or with a business entity in which he has an interest. See ss. 112.314 and 839.07- 839.09, F. S. 1973, and Watson v. City of New Smyrna Beach, 85 So.2d 548 (Fla. 1956).

The newly revised code of ethics provides that:

No public officer or employee of an agency shall own a material interest in any business entity doing business with the agency of which he is an officer or employee, except in those cases when the business is contracted with full public competition and award is made to the lowest or best bidder or to a consultant in accordance with Chapter 287.055, Florida Statutes. [Section 112.313(2), F. S., as amended by Ch. 74-177, supra.]

As an elected city councilman, Mr. Pacchioli is a public officer within the meaning of this law. Section 112.312(7)(a), supra. Additionally, he owns a material interest in a business entity, his hardware store. If that business sells merchandise to the city, it will be "doing business" with the agency of which Mr. Pacchioli is "an officer." Therefore, the above-quoted statute is specifically applicable to Mr. Pacchioli. Sale of merchandise by him or his hardware store to the city would constitute a violation of this section unless Mr. Pacchioli's hardware sales are submitted to competitive public bidding in accordance with the procedures set forth in s. 287.055, F. S. 1973.