CEO 87-2 -- January 29, 1987

CONFLICT OF INTEREST

STATE REPRESENTATIVE PARTNER IN TRAVEL AGENCY

DOING BUSINESS WITH LEGISLATURE

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

SUMMARY:

A prohibited conflict of interest would be created were a State Representative to be a partner in a travel agency which makes travel arrangements for members and employees of the Legislature traveling on official business. While Section 112.313(3), Florida Statutes, prohibits a legislator from doing business with his agency, Section 112.313(12)(f) creates an exception where the total amount of the subject transaction does not exceed $500. CEO's 86-27, 76-175, 80-1, 80-13, and 85-71 are referenced.

QUESTION:

Would a prohibited conflict of interest be created under the Code of Ethics for Public Officers and Employees were the travel agency in which you are a partner to continue to make travel arrangements for members and staff of the Senate and joint committees while you serve in the House of Representatives?

Your question is answered in the affirmative, subject to the exception noted below.

In a previous opinion request you advised that you were a partner in a travel agency that handles travel arrangements for the employees of the State of Florida. You also advised that you were a candidate for a seat in the Florida House of Representatives and that you planned to do no travel-related business with the Florida Legislature.

In that opinion, CEO 86-27, we concluded that the Code of Ethics for Public Officers and Employees would not preclude your travel agency from doing business with other State agencies, although you would be prohibited from personally contacting those agencies in an effort to market the services of your travel agency. In a number of previous opinions we have advised that the Code of Ethics for Public Officers and Employees would not prohibit a State legislator's involvement in a business entity selling goods or services to State agencies other than the Legislature. See CEO 84-9, CEO 86-27, CEO 83-13, CEO 82-33, CEO 81-24, and CEO 78-39.

You recently were elected to serve in the House of Representatives and now question whether your travel agency can handle travel arrangements for the Senate and for joint committees of the Legislature.

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 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), Florida Statutes (1985).]

This section prohibits a public officer from being a partner in a business entity which is doing business with his public agency. Since your agency as a State Representative is the Legislature, your travel agency thereby would be prohibited from making travel arrangements for the members and employees of the Senate and the various joint committees who are traveling on official business.

In previous opinions we have advised that a travel service would not be doing business with a public agency when officials and employees of that agency personally paid for their official travel and were reimbursed later by their agency. After further consideration of this interpretation, however, we are of the opinion that this rationale allows an individual to do indirectly what he is prohibited from doing directly and thereby circumvents the intent of the statute. Therefore, to the extent that this opinion requires the reversal of previously issued advisory opinions, the following opinions are hereby reversed: CEO 76-175, CEO 80-1, CEO 80-13, and CEO 85-71.

Please note that the Code of Ethics contains several exceptions to the prohibition of Section 112.313(3), Florida Statutes, including an exemption where:

The total amount of the subject transaction does not exceed $500. [Section 112.313(12)(f), Florida Statutes (1985)].

This provision has been interpreted to exempt a single transaction in an amount not exceeding $500. See CEO 86-80.

We also would call your attention to the following provision of the Code of Ethics:

MISUSE OF PUBLIC POSITION. -- No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes (1985)].

As in CEO 85-71, we would caution you also that your solicitation of private travel business from legislative members and employees could constitute a violation of this provision.

Accordingly, we find that a prohibited conflict of interest would be created were your travel agency to make travel arrangements for members and staff of the Senate and joint committees traveling on official business except to the extent that the total amount of a particular transaction does not exceed $500.