CEO 76-183 -- October 25, 1976

CONFLICT OF INTEREST

CITY COUNCILMAN BIDDING ON SURPLUS CITY PROPERTY SOLD AT AUCTION

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

Prepared by: Bonnie Johnson

SUMMARY:

A public officer is prohibited by Florida Statute s. 112.313(7)(a)(1975) from having a contractual relationship with an agency subject to the regulation of his own public agency. Accordingly, a city councilman would appear to be prohibited from purchasing surplus tangible property from the municipality which he serves. However, subsection (7) further provides that where the officer's agency is a legislative body and the regulatory power over the other agency is exercised strictly through the enactment of laws or ordinances, then a contractual relationship with that agency is not deemed to be a conflict. Fla. Stat. s. 112.313(7)(a)2.(1975). As the subject city operates under a consolidated form of government wherein the city council may take official action only by the adoption of ordinances or resolutions, the exemption cited above is applicable in the instant case. Therefore, no prohibited conflict of interest would be created in the subject city councilman's participation in a public auction held by the city for sale of surplus tangible property.

QUESTION:

Would a prohibited conflict of interest be created were a member of my municipality's city council to participate in a public auction held by the city for the sale of surplus tangible property?

This question is answered in the negative.

You advise in your letter of inquiry that a member of the city council desires to participate in a public auction held by the city to dispose of surplus tangible property. We are further informed that the auction is conducted by a private auctioneer under contract to the city.

The Code of Ethics for Public Officers and Employees provides in relevant part:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. --(a) 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)(1975).]

A public officer thus is precluded from having a contractual relationship with an agency regulated by his public agency. However, s. 112.313(7) further provides as follows:

When the agency referred to is a legislative body and the regulatory power over the business entity resides in another agency, or when the regulatory power which the legislative body exercises over the business entity or agency is strictly through the enactment of laws or ordinances, then employment or a contractual relationship with such business entity by a public officer or employee of a legislative body shall not be prohibited by this subsection or be deemed a conflict. [Fla. Stat. s. 112.313(7)(a)2.(1975).]

By law the powers of the subject city's consolidated government are divided among the legislative, executive, and judicial branches, with the further provision that "[n]o power belonging to one branch of the government shall be exercised by either of the other branches, except as expressly provided . . . ." Chapter 67-1320, Laws of Florida, Art. 4, s. 4.01. The mayor is designated as the chief executive and administrative officer of the consolidated government and in this capacity administers, supervises, and controls all departments and divisions created by city charter. Chapter 67-1320, Laws of Florida, Art. 6, s. 6.03. Pursuant to Art. V, s. 5.06, the city council is vested with "[a]ll legislative powers of the consolidated government." It is further provided in s. 5.08 that the city council "may take official action only by the adoption of ordinances or resolutions."

As the city council constitutes a legislative body whose regulatory authority over the city and its departments is solely through the enactment of ordinances, the exemption provided in the above-quoted s. 112.313(7)(a)2. is applicable in the instant case. Accordingly, no prohibited conflict of interest would be created in a city councilman's participation in a public auction held by the subject city for sale of surplus tangible property.