CEO 91-55 -- September 13, 1991

CONFLICT OF INTEREST

PART-TIME PUBLIC SCHOOL CAFETERIA CASHIER

SELLING REAL PROPERTY TO SCHOOL BOARD

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

SUMMARY:

No prohibited conflict of interest would be created were a part-time cashier at a public school cafeteria to sell real property to the school board. Section 112.316, Florida Statutes, shields the employee from the strict language of Sections 112.313(3) and 112.313(7)(a), Florida Statutes, because the employee has no public duties or responsibilities regarding the purchase. CEO's 78-22, 82-76, and 88-17 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were a part-time cashier at a public school cafeteria to sell real property to the school board?

Your question is answered in the negative.

By your letter of inquiry, telephone conversation between your office and our staff, and telephone conversation between our staff and personnel of the Pinellas County School Board, we are advised that . . . . is employed approximately three and one half hours per day, during the regular school year, as a cafeteria cashier at a public school in Pinellas County. She is not paid during the summer and does not participate in any of the Board's health insurance coverages or other benefits that full-time employees enjoy. The employee has no role or responsibility, as part of her public employment, concerning purchases by the Board.

In addition, we are advised that the employee co-owns with her ex-husband, under a tenancy in common, a parcel of real property that the Board is attempting to purchase. The Board approached the employee about acquiring the property and she does want to sell her interest. You relate further that other parcels next to the employee's property already have been purchased by the Board, that other properties near her property have contracts for sale pending with the Board, and that purchase of her property by the Board is necessary in order for the Board to acquire, in full, a suitable tract for its purposes.

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 of 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.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes.]

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.]

CONSTRUCTION.--It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, Florida Statutes.]

Since it is apparent that the subject employee will not be acting in her public capacity to purchase the property for the Board, the purchase would not violate the first part of Section 112.313(3). Further, we have advised that because of the provisions in Section 112.316, one holding a public position is not prohibited under Sections 112.313(3) or 112.313(7)(a) from selling goods or services to her political subdivision, where the subject employee is not responsible in any manner for the approval of or the giving of advice or recommendations as to the purchases. See CEO 78-22, CEO 82-76, CEO 88-17, and the opinions cited therein. In our view, the situation before us is controlled by our previous decisions.

Accordingly, we find that no prohibited conflict of interest would be created were the subject part-time cashier at a public school cafeteria to sell her interest in real property to the School Board.