CEO 82-68 -- September 20, 1982

CONFLICT OF INTEREST

COUNTY ADVERTISING LEGAL NOTICES IN A NEWSPAPER OWNED BY A COUNTY COMMISSIONER AND TAKING BIDS FROM THE COMMISSIONER'S PRINTING COMPANY ON A QUOTATION BASIS

To: Mr. Neal J. Dunn, County Attorney for Hendry County

SUMMARY:

No prohibited conflict of interest would be created were a newspaper owned by a county commissioner to publish legal notices of the county. Section 112.313(12)(c), Florida Statutes, exempts the purchase by an agency of legal advertising in a newspaper owned by an officer of that agency. Previous opinion CEO 78-30 is referenced.

A prohibited conflict of interest would be created were a printing company owned by a county commissioner to do business with the county through a quotation process, as opposed to a sealed bid process. Section 112.313(3), Florida Statutes, prohibits a county commissioner from owning a business which is selling any goods or services to the county. Although an exemption exists under Section 112.313(12)(b), Florida Statutes, where the business is awarded under a system of sealed, competitive bidding, a purchase of printing through an unsealed, written quotation procedure would not comply with this exemption.

QUESTION 1:

Would a prohibited conflict of interest be created were a newspaper owned by a county commissioner to publish legal notices of the county?

This question is answered in the negative.

In your letter of inquiry you advise that Mr. Donald A. Davis, a member of the Hendry County Board of County Commissioners, owns one of two newspapers within the County. Each newspaper covers a separate area of the County, you advise. You question whether the County may advertise its legal notices in the Commissioner's newspaper.

In a previous opinion, CEO 78-30, we advised that the Code of Ethics for Public Officers and Employees would not prohibit a newspaper published by a school board member from selling legal advertising to the school board. That opinion was based upon the exemption contained in Section 112.313(12)(c), Florida Statutes, where a purchase or sale is for legal advertising in a newspaper.

Accordingly, we find that no prohibited conflict of interest would be created were the newspaper owned by the subject County Commissioner to publish the County's legal notices.

QUESTION 2:

Would a prohibited conflict of interest be created were a printing company owned by a county commissioner to do business with the county through a quotation process, as opposed to a sealed bid process?

This question is answered in the affirmative.

In your letter of inquiry you advise that Mr. Davis also owns a printing company. You also advise that for purchases in excess of $500, the County requires that a sealed bidding procedure be used. However, most of the County's printing requirements cost less than $500. Where a purchase does not exceed $500, the County Purchasing Department asks for written quotations; under this procedure, advertisements are not required to be published, and the written quotations are opened by the Purchasing Department rather than at a Commission meeting.

Section 112.313(3), Florida Statutes, prohibits a County Commissioner from owning a business entity which is selling any goods or services to the County. An exemption is provided where:

The business is awarded under a system of sealed, competitive bidding to the lowest or best bidder and:

1. The official or his spouse or child has in no way participated in the determination of the bid specifications or the determination of the lowest or best bidder;

2. The official or his spouse or child has in no way used or attempted to use his influence to persuade the agency or any personnel thereof to enter such a contract other than by the mere submission of the bid; and

3. The official, prior to or at the time of the submission of the bid, has filed a statement with the Department of State, if he is a state officer or employee, or with the Clerk of the Circuit Court of the county in which the agency has its principal office, if he is an officer or employee of a political subdivision, disclosing his, or his spouse's or child's, interest and the nature of the intended business. [Section 112.313(12)(b), Florida Statutes (1981).]

As the Legislature expressly has required that a "system of sealed, competitive bidding" is necessary to comply with this exemption, we have interpreted that requirement strictly. See CEO's 81-2 and 81-28, for examples.

Accordingly, we find that a prohibited conflict of interest would be created were the subject County Commissioner's printing company to do business with the County through a quotation process.