CEO 75-213 -- December 15, 1975

CONFLICT OF INTEREST

EMPLOYEE OF MUNICIPAL AUTHORITY PARTNER IN FIRM DOING BUSINESS WITH THE CITY AND ITS AUTHORITIES

To: W. B. McCullough, Jacksonville Electric Authority

Prepared by: Bonnie Johnson

SUMMARY:

Section 112.313(3) prohibits an employee of a political subdivision from selling any realty, goods, or services to that subdivision or to any agency thereof. The Jacksonville Electric Authority was established as a body politic with its own independent governing board and therefore constitutes a political subdivision distinct from the City of Jacksonville. Were an employee of the Electric Authority to become a partner in a private company, that company would be prohibited by s. 112.313(3) from transacting business with the Electric Authority, the employee/partner's agency. No prohibited conflict would be created, however, if the proposed partnership were to transact business with other authorities or with the City of Jacksonville.

QUESTION:

Would a prohibited conflict of interest be created were I, an employee of the Jacksonville Electric Authority, to become a partner in a business which contemplates doing business, on a bid basis, with the City of Jacksonville or any of its authorities?

You inform us in your letter of inquiry that you, an employee of the Jacksonville Electric Authority, contemplate entering into a partnership in an oil filtering service which potentially would bid on this type service for the City of Jacksonville or its authorities. Business would be contracted on a competitive bid basis, and work with your private company would be confined to your off-duty hours.

The applicable section of the Code of Ethics for Public Officers and Employees provides as follows:

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 for his own agency purchase, rent, or lease any realty, goods, or services from any business entity of which he, his spouse, or child is an officer, partner, director, or proprietor, or in which such officer or employee, 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, if he is serving as an officer or employee of any political subdivision, to that subdivision or to any agency thereof. 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 nor be construed to prohibit contracts entered into prior to:

(a) The effective date of this act;

(b) Qualifications for elective office;

(d) Beginning public employment

[Section 112.313(3), F. S., as amended by Ch. 75-208, Laws of Florida; emphasis supplied.]

The Jacksonville Electric Authority was established by Ch. 67- 1569, Laws of Florida, as a "body politic" with its own independent governing board. It is not an agency of the City of Jacksonville but constitutes a political subdivision in its own right. It is our understanding that you are a maintenance foreman with the authority, having been employed through the civil service system of the City of Jacksonville. Job supervision, however, comes from the authority rather than from the city. For purposes of the Code of Ethics, you are an employee of the authority, a distinct political subdivision, rather than of the city. Accordingly, you are prohibited by s. 112.313(3) above from transacting business in a private capacity with the Jacksonville Electric Authority, your agency, or with any other agency of the authority.

In a previous opinion of this commission, CEO 75-196, we interpret the phrase "acting in a private capacity" to apply when the officer or employee owns a material interest in the business entity engaged in transactions with any agency of his political subdivision. One's engaging in such work only during his off-duty hours, as you mention in your letter of inquiry, would in no way affect this prohibition. Nor would competitive bidding alter the situation. The rationale in CEO 75-196, a copy of which is enclosed, therefore is equally applicable to your inquiry.

Accordingly, we find that a prohibited conflict of interest would be created if the proposed partnership were to transact business with the Jacksonville Electric Authority or any of its agencies so long as you are employed by the authority. The City of Jacksonville constitutes a separate political subdivision, however, and therefore you are not prohibited from privately doing business with the city. Likewise, other authorities constitute bodies distinct from both the city and the electric authority and, therefore, private business transactions between your partnership and such authorities would not be prohibited by s. 112.313(3).