CEO 76-169 -- September 13, 1976

CONFLICT OF INTEREST

MAYOR SELLING POLICE CAR TO CITY

To: Sidney M. Crawford, Frostproof City Attorney, Avon Park

Prepared by: Gene Rhodes

SUMMARY:

A prohibited conflict of interest would be created were an automobile dealership at which a city mayor is employed as executive vice president to sell by competitive bid a police car to that city. Florida Statute s. 112.313(3)(1975) prohibits an officer of a political subdivision from acting in a private capacity to sell to that subdivision or to any of its agencies. One is deemed to be acting in his private capacity to sell where a business entity of which he is an officer sells. A public officer is further prohibited by s. 112.313(7) from being employed by a business entity which does business with his public agency.

QUESTION:

Would a prohibited conflict of interest be created were an automobile dealership to sell, by competitive bid, a police car to a municipality where the executive vice president of the dealership serves as mayor of the municipality?

Your question is answered in the affirmative.

It is our understanding, based upon correspondence from you, that an automobile dealership wishes to bid for the sale of a police car to a city of which the dealership's executive vice president is mayor. The subject mayor has no vote with regard to the acceptance or rejection of bids, and his veto power is restricted to the enactment of ordinances and resolutions.

The Code of Ethics for Public Officers and Employees provides 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 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 to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision . . . . [Fla. Stat. s. 112.313(3)(1975); emphasis supplied.]

The italicized language above prohibits a public officer from acting in a private capacity to sell goods to his own political subdivision or to any agency thereof. In our view, one is acting in a private capacity to sell where he is an officer of a business entity which sells. See CEO 76-5. Accordingly, the above-quoted provision prohibits the sale of goods to the city by a business entity of which the mayor is an officer.

The Code of Ethics further provides as follows:

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. . . . [Fla. Stat. s. 112.313(7)(a)(1975).]

A public officer thus is prohibited also from being employed by a business entity which does business with his public agency. Were the employer/dealership to sell an automobile to the city council on which the mayor sits, the provisions of the above statute would be violated.

Accordingly, a conflict of interest under the Code of Ethics for Public Officers and Employees would be created were an automobile dealership whose executive vice president serves as mayor of a city to sell, by competitive bid or otherwise, an automobile to that city.