CEO 85-75 -- October 24, 1985

CONFLICT OF INTEREST

CITY FIREFIGHTER OWNING BUSINESS SUPPLY STORE SELLING TO CITY

To: (Name withheld at the person's request.)

SUMMARY:

No prohibited conflict of interest would be created were a city fireman/engineer who owns the only business supply store within the city to sell supplies to the city. Under the rationale of CEO 76-10, the fireman/engineer would not be prohibited from selling to agencies of the city other than the fire department. However, if the firefighter complies with the requirements of the sole source exemption provided in Section 112.313(12)(e), Florida Statutes, he may sell supplies to the fire department.

QUESTION:

Would a prohibited conflict of interest be created were a city fireman/engineer who owns the only business supply store within the city to sell supplies to the city?

Your question is answered in the negative, subject to the exemption noted below.

In your letter of inquiry you advise that .... and his wife presently own the only business supply store within the City of Avon Park. The City recently has been purchasing nearly all of its business supplies from the store.

You also advise that the store's owner has applied to work with the City Fire Department as a fireman/engineer. In that capacity he will have no supervisory responsibilities and will not be in a position to direct the purchase of supplies from his business. Any requests for purchases would come from the Fire Chief and would be authorized by the City Manager.

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. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1983).]

This provision prohibits a City employee from acting in a private capacity to sell any goods to the City or to any agency thereof.

However, in a previous opinion, CEO 76-10, we advised that the Code of Ethics for Public Officers and Employees would not prohibit a city police officer's business from selling goods to agencies of the city other than the police department. There, we found that the police officer had no input into policy making decisions of other city agencies and was not responsible for approving or giving advice or recommendations regarding what goods would be purchased by city agencies other than the police department.

Since the issuance of CEO 76-10, the Code of Ethics has been amended to provide several specific exemptions. Of particular note here is Section 112.313(12)(e), Florida Statutes, which provides an exemption where

[t]he 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 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.

The form we have prescribed for making the disclosure required by this exemption is Commission on Ethics Form 4A, Disclosure of Business Transaction, Relationship, or Interest. For an example of the application of this provision, see CEO 83-52, in which we advised that a captain with a city fire department could be employed by the only fire and safety equipment company located in the county.

Accordingly, we find that no prohibited conflict of interest would be created were a fireman/engineer with the City to sell business supplies to agencies of the City other than the Fire Department. In addition, the fireman/engineer could sell to the Fire Department on a sole source basis provided he completes and files Commission on Ethics Form 4A with the governing body of the City prior to the transaction of business.