CEO 89-51 -- October 26, 1989

CONFLICT OF INTEREST

COUNTY COMMISSIONER SELLING PRINTING SERVICES TO COUNTY SHERIFF'S DEPARTMENT

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

SUMMARY:

As a sheriff's department is an agency of the county, a county commissioner who privately owns a printing business may not sell printing services to the sheriff's department without violating Section 112.313(3), Florida Statutes, unless one of the exemptions contained in Section 112.313(12), Florida Statutes, is applicable.

QUESTION:

Does a prohibited conflict of interest exist where you, a county commissioner who also owns a printing business, periodically sell printing services to the county sheriff's department?

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

In your letter of inquiry you advise that you are an elected County Commissioner in Charlotte County, which is a charter county. You also advise that you are a principal in a closely held corporation operating a printing business in the County, which has provided some printing services to the County Sheriff's Department. This printing work is not performed on a contractual basis, and the company has not bid on printing projects with the Sheriff's Department. The Sheriff's Department merely has brought some of its printing work to your firm from time to time over the past several years.

In regard to your question, 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 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.

(d) Beginning public employment.

Presumably you have no part in the decision by the Sheriff's office to use your company for printing services. Section 112.313(3), however, also prohibits you from "acting in a private capacity" to sell services to your political subdivision or to any agency thereof.

In previous opinions, we have determined that "acting in a private capacity" for purposes of Section 112.313(3) includes actions taken by a corporation in which a public official owns more than a five percent interest. See CEO 81-27, CEO 76-23, and CEO 78-7. Therefore, your corporation would be prohibited from selling printing services to the County or to any agency thereof.

Pursuant to our analysis in CEO 83-58, the Sheriff's Department is an agency under the definition of "agency" in Section 112.312(2), Florida Statutes. As Article VIII, Section (1)(d), Florida Constitution, provides that a sheriff is an officer of a county, we are of the opinion that the Sheriff's Department is an agency of the County. No provision in the County's Home Rule Charter appears to affect this determination. Therefore you could not sell services to the Sheriff's Department without violating Section 112.313(3), Florida Statutes.

Several exemptions to the prohibition of Section 112.313(3) are contained in Section 112.313(12), Florida Statutes. These exemptions may apply, for example, where an agency transacts business under a system of sealed, competitive bidding, on an emergency basis, with the only source of supply within the political subdivision, or in an amount not exceeding $500. Your letter of inquiry does not indicate that the terms of any of these exemptions would be met for any of your past transactions with the Sheriff's Department, but we direct your attention to them in the event that you may wish to do business with that Department in the future.

Accordingly, we find that a prohibited conflict of interest exists where your printing company sells printing services to the Sheriff's Department unless one of the exemptions contained in Section 112.313(12), Florida Statutes, is applicable. For further information about the requirements of these exemptions, please contact our staff.