CEO 75-42 -- March 6, 1975

STANDARDS OF CONDUCT

PROPRIETY OF COUNTY OFFICER SELLING MERCHANDISE TO THE COUNTY HE REPRESENTS

To: William F. Edwards, County Attorney, Citrus County, Inverness

Prepared by: Gene L. "Hal" Johnson

SUMMARY:

Reference is made to CEO 74-52. Under s. 112.313(2), F. S., as amended by Ch. 74-177, Laws of Florida, a public officer or employee owning material interest in a business entity may do business with the agency in which he or she is an officer or employee if the contract is awarded on a competitive bid basis. The term "agency" as used in s. 112.313(1), F. S., applies to each separate governmental department and division. Accordingly, Mr. Bunts, a Citrus County commissioner and auto parts business owner, may not sell his merchandise to the Board of County Commissioners. But he may do business with the Citrus County Sheriff's Office, Mosquito Control District, and School Board. Similarly, Mr. Grumbling, Zoning Board of Adjustment member and business owner, may do business without following bidding procedures with the Citrus County Board of Commissioners, School Board, and constitutional officers. However, the opinions on both of the above- cited instances apply only under the Code of Ethics. Criminal statutes on competitive bidding requirements prescribed by state law or local ordinance may also apply but fall outside the jurisdiction of the Commission on Ethics.

QUESTIONS:

1. May Mr. Walter Bunts, a Citrus County Commissioner who owns certain businesses which sell auto parts, sell merchandise to the Citrus County Sheriff's Office, Mosquito Control District, School Board, and Board of County Commissioners?

2. May Mr. Ronald S. Grumbling, a member of the Zoning Board of Adjustment for Citrus County and owner of a business entity, sell merchandise to the Citrus County Board of Commissioners and its various departments, the Citrus County School Board, and to the constitutional officers of Citrus County in their official capacities?

Question 1 is answered in the affirmative in all instances except as to the Board of County Commissioners, to whom he may not sell merchandise except on a competitive bid basis.

Section 112.313(2), F. S., sets forth the standards under which a public officer or employee owning a material interest in a business entity may do business with a governmental agency. The only limitation placed on these transactions, beyond the disclosure required in s. 112.313(3), F. S., is that if the agency involved is one of which the individual is an officer or employee, the contract must be awarded on a competitive bid basis.

In a previous opinion, CEO 74-52, we interpreted the term "agency," s.112.313(1), F. S., to apply to each named body (a department, division, bureau, etc.) at each level of government; such a body would therefore constitute a separate and autonomous agency in applying the provisions of the Code of Ethics. Interpreted in this way, the only agency to which Mr. Bunts is precluded from selling merchandise would be the Citrus County Commission.

Understand, of course, that our jurisdiction extends only to the interpretation of the laws given to us to interpret and does not encompass a number of criminal statutes which could have a bearing on this question overall.

Question 2 is answered in the affirmative.

As we indicated in question 1 above, we view each governmental department and division as separate entities based upon the legislative definition of the term "agency" as found in s. 112.312(1), F. S. Based upon this interpretation, the limitation of s. 112.313(2), F. S., which requires competitive bidding is inapplicable in the present instance.

We therefore conclude that Mr. Grumbling may sell merchandise to the above-named agencies without the necessity of a bidding procedure under the provisions of the Code of Ethics. However, this opinion should not be construed to affect competitive bidding requirements prescribed elsewhere by state law or local ordinance, or criminal statutes which fall outside our jurisdiction.