CEO 85-35 -- May 9, 1985

CONFLICT OF INTEREST

DEPARTMENT OF GENERAL SERVICES PURCHASING DIRECTOR'S SONS EMPLOYED BY COMPANIES DOING BUSINESS WITH DEPARTMENT

To: Mr. John J. Hittinger, Director, Division of Purchasing, Department of General Services, Tallahassee

SUMMARY:

No prohibited conflict of interest exists where sons of the Director of the Division of Purchasing, Department of General Services, are employed by corporations doing business with the Division and other State agencies. However Sections 112.313(3) and 112.3185(6), Florida Statutes, would prohibit an agency employee from acting in an official capacity to procure from a business of which his child is an officer, partner, director, or proprietor or in which the child owns more than a five percent interest.

QUESTION:

Does a prohibited conflict of interest exist where you serve as the Director of the Division of Purchasing, Department of General Services, and your sons are employed by corporations doing business with the Division and other State agencies?

Your question is answered in the negative under the circumstances presented.

In your letter of inquiry you advise that you are the Director of the Division of Purchasing, Department of General Services. You also advise that you have two sons who currently are employed as salesmen by corporations doing business with the State. As both corporations provide commodities which are competitive with other products, all acquisitions from them by State agencies or by the Division are made through the competitive bid process specified in Part I, Chapter 287, Florida Statutes. The Division does not make any purchases under $2,500 from these corporations for State agencies. The bids submitted from the corporations are submitted and signed by the corporate officers, rather than by either of your sons. Finally, you advise that no member of your family is an officer, partner, director, or proprietor of either company, or owns an interest as a stockholder or otherwise in either company.

The Code of Ethics for Public Officers and Employees provides in relevant part:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. . . . [Section 112.313(3), Florida Statutes (1983).]

No agency employee acting in his official capacity shall directly or indirectly procure contractual services for his own agency from any business entity of which a relative, as defined in s. 116.111(1)(c), is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. [Section 112.3185(6), Florida Statutes (1983).]

Section 112.313(3) prohibits you from acting in your official capacity to purchase any goods from a business of which your child is an officer, partner, director, or proprietor, or in which your child owns a material interest. The term "material interest" is defined in Section 112.312(12), Florida Statutes, to mean direct or indirect ownership of more than five percent of the total assets or capital stock of a business entity. However, as your sons are merely employees of the corporations, we find that Section 112.313(3) does not apply.

Similarly, we find that Section 112.3185(6) does not apply here, as your sons are solely employees of the companies. In addition, we note that this Section applies to "contractual services," and therefore does not apply to purchases of the commodities which you have advised are sold by your sons' employers.

Accordingly, we find that no prohibited conflict of interest exists where you serve as the Director of the Division of Purchasing, Department of General Services, and your sons are employed by corporations doing business with the State.