CEO 76-93 -- May 17, 1976

CONFLICT OF INTEREST

MUNICIPAL EMPLOYEE EMPLOYED BY FIRM DOING BUSINESS WITH CITY

To: John Berenguer, Human Resources Department, City of Jacksonville

Prepared by: Bonnie Johnson

SUMMARY:

No conflict of interest under Florida Statute s. 112.313(7)(1975) is created where a municipal employee does work for a janitorial and maintenance service owned by his wife so long as the company does no business with the employee's public agency, the Department of Human Resources. Such employee would be prohibited from soliciting business for his wife's firm from any agency of the city, however, pursuant to s. 112.313(3) which provides that no employee of a political subdivision may act privately to sell services to his own agency or to any agency within that political subdivision.

QUESTION:

Would a prohibited conflict of interest be created were I to accept outside employment with a janitorial firm owned and managed by my wife where such firm does business with the city by which I am employed?

Your question is answered in the negative.

We understand, based upon information contained in your letter of inquiry, that you are employed by the City of Jacksonville in the capacity of Staff Development Coordinator, Department of Human Resources. Your wife owns and operates a small janitorial and maintenance service which currently holds contracts, awarded on a bid basis, for a small amount of work with the city. The firm holds no contracts with the Human Resources Department, however. The business is still in a developmental stage, we understand, but your wife plans to bid on larger city jobs as well as for work with state and federal agencies. All contracts call for work to be done after 5:30 p.m.

You further advise in your letter of inquiry that you have assisted your wife in this business endeavor through relieving her on job sites once or twice weekly, helping her with business terminology and paperwork, joining her on weekends for work and errands, and making contacts in behalf of the firm. Since the business was formed approximately 8 months ago, you have received no compensation for your work with the firm but contemplate receiving wages for actual cleaning services which may be performed in the future. Based on these circumstances, you inquire whether any provision of the Code of Ethics for Public Officers and Employees is breached by such activity on your part.

The Code of Ethics provides in relevant part:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Fla. Stat. s. 112.313(7)(1975).]

Accordingly, a public employee is prohibited from holding employment with a firm which does business with his public agency. For purposes of the Code of Ethics, your agency is the Human Resources Department of the city. See Fla. Stat. s. 112.312(2)(1975). Therefore, under terms of the above-quoted provision, no conflict would be created were you to be employed (i.e., do work for compensation) by your wife's business so long as the firm does no business with your agency, the Human Resources Department.

We also call your attention to another provision of the Code of Ethics, which states in pertinent 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 or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in his 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 agency thereof, if he is serving as an officer or employee of that political subdivision . . . . [Fla. Stat. s. 112.313(3)(1975).]

The above-cited provision thus prohibits a public employee from acting officially to purchase from a business owned by his spouse. Inasmuch as you have no purchasing authority, the first sentence of this provision is not applicable to your situation. However, the provision further prohibits an employee of a political subdivision from acting privately to sell services to his public agency or to any agency within that political subdivision. Accordingly, you are prohibited by the Code of Ethics from soliciting sales in behalf of your wife's business from your own agency, the Human Resources Department, or from any agency of the city.