CEO 75-68 -- March 31, 1975

STANDARDS OF CONDUCT

PROPRIETY OF CITY COMMISSIONER DOING BUSINESS WITH MUNICIPALITY HE REPRESENTS

To: Louie W. Seay, Jr., City Manager, Marianna

Prepared by: Bonnie Johnson

SUMMARY:

Section 112.312(2), F. S. (1974 Supp.), provides that no public officer or employee may own a material interest in a business entity which does business with the agency of which he is an officer or employee unless the business is contracted with full public competition and award is made to the lowest or best bidder. Under the Code of Ethics the City of Marianna may therefore transact business with a city commissioner so long as these competitive bid procedures are followed. However, ss. 839.07 and 839.10, F. S., may apply to such transactions, but the Ethics Commission has no advisory jurisdiction over these statutes.

QUESTION:

May the City of Marianna buy or rent merchandise from, or have equipment repaired by, a firm which is totally or partially owned by one of its city commissioners, Mr. J. D. Swearingen?

Section 112.313(2), F. S., as amended by Ch. 74-177, Laws of Florida, states:

No public officer or employee of an agency shall own a material interest in any business entity doing business with the agency of which he is an officer or employee, except in those cases when the business is contracted with full public competition and award is made to the lowest or best bidder or to a consultant in accordance with s. 287.055, Florida Statutes. (Emphasis supplied.)

Under the Code of Ethics, Ch. 74-177, supra, no conflict of interest exists where these competitive bid procedures are followed.

There do exist, however, statutes carrying criminal penalties which prohibit public officers from bidding on public works. These statutes are not within the purview of the Ethics Commission's advisory jurisdiction, but nevertheless may have some bearing upon the instant situation. For your information, these statutes are as follows:

839.07 Officers prohibited from bidding, etc., for public work. -- It is unlawful for any commissioned or other officer of this state, or for any officer elected or otherwise of any county or incorporated town or city therein, to bid or enter into, or be in any way interested in, a contract for the working of any public road or street, the construction or building of any bridge, the erecting or building of any house, or for the performance of any other public work in which the said officer was a party to the letting, and any person who violates the provisions of this section shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

839.10 No officer or board to bid for public work. -- No state or county officer nor member of any state or county board shall bid for, or enter into, or be in any manner interested in any contract for public work for which the said officer or state or county board is or may be a party to the letting. Any person violating the provisions of this section shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083; provided, that no member of any board aforesaid who shall have recorded his vote against the letting of such contract, or who shall have been absent at the taking of the vote thereon, shall be convicted of a violation of this section.

We have requested an opinion from the Attorney General as to the effect of the recently revised ethics code provisions (Ch. 74-177, Laws of Florida) upon these earlier statutes. In the meantime, it seems clear from reading s. 112.313(2) that the Legislature's intent was to allow public officers to transact business with their own agencies under procedures strictly guarding against self-dealing through full public competition.

Accordingly, we find no conflict of interest under the Code of Ethics in the City of Marianna's transacting business with Commissioner Swearingen's firms so long as all such business is contracted in accordance with competitive bid procedures. While we cannot judge what effect the enactment of the new ethics code has on the criminal statutes cited above, we will forward to you a copy of the Attorney General's advisory opinion on this matter when it becomes available.