CEO 94-27 -- June 2, 1994

CONFLICT OF INTEREST; VOTING CONFLICT

SCHOOL BOARD MEMBER KEEPING COMPANY WITH UNMARRIED

GENTLEMAN SELLING BOOKS TO SCHOOL BOARD

To: (Name withheld for lack of consent).

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(3), Florida Statutes, were a gentleman friend of a district school board member to sell a book he has written to the school system. The friend would not constitute a "spouse" under Section 112.313(3).

However, were the member and the gentleman to marry, establish a common household, or share living expenses, such that the gentleman would contribute to the member's support, the member would be subject to the requirements of the voting conflicts law [Section 112.3143(3)(a), Florida Statutes] regarding any measures that would inure to the special private gain of the gentleman, inasmuch as any such gain would also inure to the member's own special private gain. CEO's 83-29 and 83-49 are referenced.

QUESTION:

Would a prohibited conflict of interest be created under Section 112.313(3), Florida Statutes, were a gentleman friend of you, a district school board member, to sell a book he has written to the school system?

Your question is answered in the negative.

By your letter of inquiry, we are advised that you serve as Chairperson and a member of the Dade County School Board. In addition, you advise that you are a widow and are keeping company with an unmarried gentleman, that the two of you have no plans to become married, and that you are not engaged to become married.

Your friend, you advise, has written a book which the instructional leadership staff of the school system has found to be of educational value and, you advise further, it is contemplated that the school system will purchase the book from your friend, at cost, and place it in school libraries throughout the system. It is possible, you advise, that the matter of purchasing books from your friend may come before the School Board but that if the purchase is in an amount less than $10,000, it may be made without School Board authority.

You are concerned that such a purchase might be violative of Section 112.313(3), Florida Statutes, in view of the definition of "relative" contained in Section 112.312(21), Florida Statutes, although you believe that your relationship does not fit within that definition. You describe the gentleman as "a very dear friend" and state that you "have his best interests at heart."

Section 112.313(3), Florida Statutes, provides:

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 of 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 or when such offices are on property wholly or partially owned by the legislator. 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.

Absent the applicability of an exemption under Section 112.313(12), Florida Statutes, a prohibited conflict would be created under Section 112.313(3) were the school system to purchase books or other items from one who is your "spouse."

The term "spouse" is not defined in the Code of Ethics for Public Officers and Employees (Chapter 112, Part III, Florida Statutes); nor does it appear to be defined elsewhere in the Florida Statutes in a manner useful to the interpretation of Section 112.313(3). However, Black's Law Dictionary, Fifth Edition (1979) defines "spouse" to mean "[o]ne's wife or husband," and Webster's Seventh New Collegiate Dictionary defines the term to mean "married person: HUSBAND, WIFE." Clearly, your friend does not fall within this term. Thus, there being no controlling statutory definition of "spouse," we ascribe to the term its ordinary meaning and find that Section 112.313(3) would not be violated were the school system to buy books from your friend.

In addition, notwithstanding that the term "spouse" found in Section 112.313(3) rather than the term "relative" controls, we do not find that your relationship, as described in this opinion, amounts to being a "relative" of your friend as that term is defined under Section 112.312(21). Section 112.312(21) provides in pertinent part:

'Relative,' unless otherwise specified in this part, means an individual who is related to a public officer or employee as . . . husband, wife, . . . person who is engaged to be married to the public officer or employee or who otherwise holds himself or herself out as or is generally known as the person whom the public officer or employee intends to marry or with whom the public officer or employee intends to form a household, or any other natural person having the same legal residence as the public officer or employee.

However, should you marry your friend, share a common household or living expenses with him, or otherwise develop circumstances whereby he contributes to your support, you should be careful to comply with the voting conflicts law contained in Section 112.3143(3)(a), Florida Statutes, regarding any measures that come before the School Board that would inure to the special private gain of your friend, such as the school system's purchase of his books, since his gain from the measures would constitute gain to you also. See, for example, CEO 83-29 and CEO 83-49. Section 112.3143(3)(a) provides:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.

Section 233.45, Florida Statutes, mentioned in your inquiry, is not within our jurisdiction to interpret. We suggest that you contact the Attorney General for advice concerning this statute.

Your question is answered accordingly.