CEO 77-155 -- September 22, 1977

CONFLICT OF INTEREST

SCHOOL BOARD MEMBER SUBCONTRACTING WITH GENERAL CONTRACTOR DOING BUSINESS WITH SCHOOL BOARD

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

Prepared by: Phil Claypool

SUMMARY:

A public officer is prohibited by s. 112.313(7)(a), F. S., from having a contractual relationship with a business entity which does business with his public agency. A school board member seemingly is prohibited, therefore, from contracting with a general contractor who does business with the school district. However, Ch. 77-349, Laws of Florida, provides several exemptions from the prohibition contained in s. 112.313(7)(a), one of which occurs when the business is awarded by competitive bid, the official or his spouse or child has in no way participated in the bid specifications or determination, and he has filed a statement disclosing his interest and the nature of the intended business. Accordingly, so long as these restrictions, procedures, and disclosure are followed when the school board enters into a contract with the general contractor, the school board member is not prohibited by the Code of Ethics from subcontracting with such general contractor doing business with the school board.

QUESTION:

Would a prohibited conflict of interest exist were a school board member to subcontract with a general contractor who is doing business with the school board?

Your question is answered in the negative, subject to certain conditions expressed later in this opinion.

You advise that you intend to run for a position on a district school board and you wish to know whether, if you are elected, you may continue to subcontract with a general contractor who has done and is doing business with the school district.

The Code of Ethics for Public Officers and Employees provides in 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), F. S. 1975.]

This provision prohibits a public officer from selling any goods or services to his agency. But it is not applicable to your situation because you will be selling to the contractor rather than to the school district, which is your agency. See CEO 76-3 (question 3). The Code of Ethics also provides as follows:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. --(a) 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 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), F. S. 1975.]

This provision would be violated were you to contract with a business entity (the general contractor) which is doing business with the school district. See CEO 76-176.

However, Ch. 77-349, Laws of Florida, provides several exemptions from the prohibition contained in s. 112.313(7)(a), above. One of those exemptions occurs where

the business is awarded under a system of sealed, competitive bidding to the lowest or best bidder and the official or his spouse or child have in no way participated in the determination of the bid specifications or the determination of the lowest or best bidder; and 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 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 1, Ch. 77-349, Laws of Florida.]

Accordingly, so long as the above restrictions, procedures, and disclosure are followed by you when the school board enters into a contract with the general contractor, we find that the Code of Ethics would not prohibit you from subcontracting with a general contractor who is doing business with the school board, if you are elected to the school board.