CONFLICT OF INTEREST
HIGH SPEED RAIL TRANSPORTATION COMMISSION MEMBER EMPLOYED BY COMPANY DOING BUSINESS WITH COMMISSION OR WITH COMMISSION FRANCHISEE
To: Mr. Arthur R. Collins, Candidate for Florida High Speed Rail Transportation Commission, Tallahassee
SUMMARY:
A prohibited conflict of interest would be created were the business which employs a member of the Florida High Speed Rail Transportation Commission to sell or lease equipment to the Commission, unless the sale or lease is entered into pursuant to a State contract or unless the terms of the competitive bidding exemption in Section 112.313(12)(b), Florida Statutes, are met. However, Section 112.313(7)(a), Florida Statutes, would not prohibit a commission member's employer from selling or leasing equipment to a franchisee of the Commission, as that Section does not prohibit a public officer from being employed by a business entity which is doing business with a second business entity, which in turn is doing business with the Commission.
QUESTION 1:
Would a prohibited conflict of interest be created were you to serve as a member of the Florida High Speed Rail Transportation Commission if the business which employs you were to sell or lease equipment to the Commission?
This question is answered in the affirmative, subject to the exceptions noted below.
In your letter of inquiry you advise that you are seeking appointment as a member of the Florida High Speed Rail Transportation Commission. You also advise that you are employed by the IBM Corporation as a Systems Engineer in its Tallahassee office. In that capacity you primarily are responsible for providing technical marketing support to the office of the comptroller and to the Department of Health and Rehabilitative Services.
The Florida High Speed Rail Transportation Commission has been created by Chapter 84-207, Laws of Florida, in order to plan, permit, finance, construct, and manage an interregional high speed rail line for the State. Among other powers, the Commission has been granted by that Act the power to contract and to hire staff.
The Code of Ethics for Public Officers and Employees provides in relevant part:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- 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), Florida Statutes (1983).]
This provision prohibits a public officer from being employed by a business entity which is doing business with his agency. Should you be appointed to serve on the High Speed Rail Transportation Commission, that Commission would constitute your "agency," as that term is defined in Section 112.312(2), Florida Statutes.
However, there are several exemptions to this prohibition. Of those exemptions, the one most likely to apply exists 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 (1983).]
Therefore, your employer would be permitted to lease or sell equipment to the Commission by a sealed, competitive bidding process if you abstain from that process and disclose (on Commission on Ethics Form 3A) your interest in the business.
In addition, we are of the opinion that the Commission would be permitted to purchase IBM equipment under any State contract which has been awarded by the Department of General Services, Division of Purchasing. Purchases in this manner would in no way interfere with the full and faithful discharge of your responsibilities as a Commission member because these contracts are awarded by competitive bid and because the Division of Purchasing rather than the Commission is responsible for awarding these contracts.
Accordingly, we find that a prohibited conflict of interest would be created were your employer to sell or lease equipment to the High Speed Rail Transportation Commission if you serve on that Commission, unless the sale or lease is entered into pursuant to State contract or the terms of the competitive bidding exemption in Section 112.313(12)(b), Florida Statutes, are met.
QUESTION 2:
Would a prohibited conflict of interest be created were you to serve on the Florida High Speed Rail Transportation Commission if the company which employs you were to sell or lease equipment to a franchisee of the Commission?
This question is answered in the negative.
Chapter 84-207, Laws of Florida, authorizes the High Speed Rail Transportation Commission to prepare and issue requests for proposals for a high speed rail line, and to issue a franchise to an applicant granting the exclusive right to construct and operate the rail line. You question whether your employer may sell or lease data processing or office equipment to such a franchisee.
Section 112.313(7)(a), Florida Statutes, quoted above, is the relevant provision of the Code of Ethics for this question also. Although this provision would prohibit you from being employed by a business entity doing business with the Commission, it does not go so far as to prohibit you from being employed by a business entity which is doing business with another business entity, which in turn is doing business with the Commission.
Accordingly, we find that no prohibited conflict of interest would be created were your employer to sell or lease equipment to a franchisee of the High Speed Rail Transportation Commission if you are appointed to serve on that Commission.