CEO 92-35 -- July 17, 1992

CONFLICT OF INTEREST

CITY FIRE DEPARTMENT EMPLOYEE

SELLING MOBILE HOME TO CITY

To: Mr. Bruce R. Conroy, City Attorney, City of Cape Coral

SUMMARY:

A prohibited conflict of interest was created under Section 112.313(3), Florida Statutes, where a city fire department employee sold a used mobile home to the city for use as a temporary fire station. Under the circumstances, it does not appear that the exemption for emergency purchases contained in Section 112.313(12)(d), Florida Statutes, would be applicable. Section 112.3175, Florida Statutes, provides that a contract executed in violation of the Code of Ethics, as in the instant case, is voidable. CEO's 88-51, 87-31, 83-76, 83-23, 82-60, 81-86, 77-75, and 77-64 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were a city fire department employee to sell a used mobile home to the city?

Your question is answered in the affirmative.

In your letter of inquiry and in subsequent information provided by you to our staff, we are advised that Ms. Amy Haston is employed by the City of Cape Coral Fire Department as a Public Education Specialist. You relate that the City Fire Department sought a used mobile home for use as a temporary fire station at a location within the City until a permanent station could be constructed. We are advised that emergency response times to that area exceeded standards, and that the Fire Department proposed establishing a temporary station at that location while a permanent facility was being built. We are also advised that County funds enabled the City to make the purchase, because the County was unable to provide fire protection to a remote area of the County, and the City could protect that remote County area and also protect this area through the expenditure of County funds. You relate that at the Fire Department's request, the City Council waived the competitive bidding process so that it could expeditiously purchase a used mobile home. You further relate that the subject employee was approached by the City about the possibility of purchasing her mobile home, which was for sale. You question whether the sale of the employee's mobile home to the City constituted a conflict of interest prohibited by the Code of Ethics for Public Officers and Employees.

Section 112.313(3), Florida Statutes, 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.

(d) Beginning public employment.

This provision prohibits a public employee from acting in a private capacity to sell any realty, goods, or services, to the political subdivision which she serves. Thus, it would appear that Section 112.313(3), Florida Statutes, was violated where the City Fire Department employee acting in her private capacity sold her mobile home to the City, notwithstanding the fact that County funds were used for the purchase. See CEO 77-75.

There are several exceptions to this prohibition contained in Section 112.313(12), Florida Statutes; however, based upon the information you have provided, the only one that appears to have any applicability is Section 112.313(12)(d), which provides:

An emergency purchase or contract which would otherwise violate a provision of subsection (3) or subsection (7) must be made in order to protect the health, safety, or welfare of the citizens of the state or any political subdivision thereof.

We have interpreted this provision in a number of previous opinions. In CEO 88-51, we concluded that an emergency did not exist which would permit a county commissioner to sell property to the county for use as a landfill. Nor did an emergency exist in CEO 87-31, which would permit a school principal to sell property he owned adjacent to his school to the school board for expansion purposes, even though no additional State funds would be available for improvements at the school unless additional property was obtained. However, we did conclude that an emergency existed in CEO 83-76, which would permit a city to purchase property from the mayor for the construction of a new sewer plant, as the city was under an order from the Department of Environmental Regulation and the Environmental Protection Agency to commence construction of the new sewer plant within seven months.

Here, the City determined that the potential for an emergency situation existed which could jeopardize the health, safety, and welfare of citizens residing in the proximity of the proposed fire station, and which resulted in its decision to waive the competitive bidding process to enable the Fire Department to purchase a used mobile home. While we do not second guess the City Council's determination that an emergency situation existed sufficient to justify waiving competitive bidding requirements, we are not convinced that the purchase of the particular trailer belonging to the Fire Department employee was necessary or justified by the nature of the emergency, for purposes of the exception contained in Section 112.313(12)(d), Florida Statutes. Our interpretation of Section 112.313(12)(d), Florida Statutes, is that not only should there be an emergency of a serious and urgent nature that demands immediate action, but also that the purchase from an otherwise prohibited source is reasonably necessitated by the nature of the emergency. See especially CEO 83-22.

Therefore, we find that a prohibited conflict of interest pursuant to Section 112.313(3), Florida Statutes, was created by the above-described circumstances. Section 112.3175, Florida Statutes, states:

Remedies; contracts voidable.--Any contract which has been executed in violation of this part is voidable:

(1) By any party to the contract.

(2) In any circuit court, by any appropriate action, by:

(a) The Commission.

(b) The Attorney General.

(c) Any citizen materially affected by the contract and residing in the jurisdiction represented by the officer or agency entering into such contract.

Accordingly, it is our opinion that the contract for the purchase of the mobile home by the City is voidable under the terms of Section 112.3175, Florida Statutes. See CEO 77-64, CEO 81-86, and CEO 82-60, in this regard.