CEO 87-44 -- June 11, 1987

CONFLICT OF INTEREST

STATE UNIVERSITY PROFESSOR PURCHASING COMPUTER FROM

COMPANY LATER DOING BUSINESS WITH UNIVERSITY

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

SUMMARY:

No prohibited conflict of interest was created where an assistant dean of a college at a State university approved purchase requisitions for the purchase of computers and related equipment from a company from which he earlier had purchased a computer for his personal use. Section 112.313(7), Florida Statutes, was not violated as the assistant dean did not have a contractual relationship with the computer company at the time he approved the purchase requisitions and the company did business with the university.

QUESTION:

Was a prohibited conflict of interest created where you, as assistant dean of a college at a State university, approved purchase requisitions for the purchase of computers and related equipment from a company from which you earlier had purchased a computer for your personal use?

Your question is answered in the negative.

In your letter of inquiry you advise that you are employed by Florida Atlantic University as an Assistant Professor of Marketing. You also advise that in July of 1985 you purchased three computers from a computer manufacturer and wholesaler, one for your personal use and the two others for friends. The computers were paid for by cash, and you made no profit from the transaction.

The name given the computer company as purchaser of equipment was the name you use when you engage in private consulting in marketing and management. The company does not sell retail, and you advise that you received their minimum dealer discount for the purchases, as does everyone who purchases directly from the company. However, you advise, you did not request dealer status, did not arrange an account with the company, did not sign a contract or any other documents, and did not request to become an authorized reseller of the company's equipment. You have not purchased any other computers from the company since that time.

In November of 1985 you were appointed Assistant Dean of the University's College of Business and Public Administration. Your administrative responsibilities in that capacity included signature authority for nearly all transactions of the College, including payroll, travel vouchers, and purchases of equipment. You reviewed purchase requisitions to determine whether there were sufficient funds to pay for them in the appropriate budget and whether the purchase was generally necessary for the activities of the Department or program.

In May of 1986 the College's Director of Computer Laboratories submitted 15 requisitions to purchase computers and related equipment. The requisitions included recommendations for dozens of specific brands of computer equipment. One of the 15 requisitions recommended the computers manufactured by the company from which you had purchased your computer. Neither the company nor any other company was identified as the sole source of supply for the equipment. After your approval of the requisitions, they were reviewed by the Associate Vice President's office and were forwarded to the central purchasing department, which conducted public bidding and handled the transactions from that point. You advise that your only connection with the computer company was the single purchase of computers in July of 1985.

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 (1985).]

This provision prohibits you from having any employment or contractual relationship with a business entity which is doing business with your agency. As the term "agency" is defined in Section 112.312(2), Florida Statutes, your "agency" is the State University which employs you.

It is clear that you have not had any employment with the computer company which sold equipment to the University. The sale of goods is a contractual relationship, however. See Sections 672.106(1), Florida Statutes, and the definition of "sale" provided in Black's Law Dictionary (5th ed.). Nevertheless, under the circumstances presented this was an isolated cash sale, and there was no contractual relationship between you and the computer company which continued after the date of the purchase, regardless of whether the company continued to list you as a reseller of its equipment. In our view, there was no continuing contractual obligation on your part toward the computer company which existed at the time you approved the purchase requisitions.

Accordingly, we find that no prohibited conflict of interest was created by virtue of your approval of purchase requisitions for the purchase of computers and related equipment from a company from which you earlier had purchased a computer for your personal use.