CEO 76-4 -- January 16, 1976

CONFLICT OF INTEREST

CITY COUNCILMAN PARTY TO CONTRACT WITH CITY

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

Prepared by: Gene Rhodes

SUMMARY:

The Code of Ethics prohibits a public officer from privately dealing with his own agency. Exception is made, however, for such business which was contracted prior to the effective date of the law, October 1, 1975, and prior to the subject officer's qualification for elective office. Therefore, where a city councilman entered into an executory contract with the city some 4 years ago, such contract falls within the exceptions cited above.

QUESTION:

Does a prohibited conflict of interest exist where a city councilman is a party to an executory contract with the city that was entered into prior to his qualifying for elective office?

Your letter of inquiry advises us that approximately 4 years prior to the councilman's election to office he entered into a contract with the city. In this contract the councilman, and the other parties to the contract, agreed to donate to the city fee simple title to a certain tract of land. In consideration of this donation, the city agreed never to use the property for any purpose other than a public road. Secondly, the councilman and other parties agreed to convey described underground easements to the city in consideration of the city's paving a road on the aforementioned conveyance of land and providing sewerage collection lines. More than 2 years prior to his election the subject councilman entered into a supplement agreement which extended the time of performance of the first agreement. The councilman and other parties have fully performed, but the city has not yet completed performance of, the contract.

The Code of Ethics for Public Officers and Employees states 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 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;

(c) Appointment to public office;

(d) Beginning public employment.

[Fla. Stat. s. 112.313(3)(1975).]

In a recent opinion of this commission, CEO 75-201, we took the position that being a member of a city commission constitutes acting in one's official capacity in relation to the above-cited statute. Applying this construction, the above-quoted provision would prohibit the councilman from entering into a contract which the city council must approve while he is a city councilman unless the contract was entered into prior to one's qualifying for elective office. Because this contract was entered into before the councilman qualified for office, it is exempt from the bar against such business dealings set forth in s. 112.313(3).

As to the prohibitions set forth in Ch. 839 of the Florida Statutes, to which your letter of inquiry referred, please be advised that this commission lacks jurisdiction to render opinions concerning its applicability. Fla. Stat. s. 112.322(2)(a)(1975).