CEO 76-184 -- October 25, 1976

CONFLICT OF INTEREST

AGENCY CONTRACTING WITH BUSINESS OWNED BY FORMER EMPLOYEE

To: Alexander Cocalis, Deputy General Counsel, Broward County, Fort Lauderdale

Prepared by: Roger Merriam

SUMMARY:

Florida Statute s. 112.316(1975) provides that it is not the intent of the Code of Ethics to prevent a public officer or employee from accepting other employment or following any private pursuit which does not interfere with the full and faithful discharge by such officer or employee of his public duties. In light of this provision, no prohibited conflict of interest is deemed to be created where an erosion prevention district contracts for consulting engineer services with a firm in which the district's former part-time administrator holds a material interest. An employee of a political subdivision is prohibited from privately selling services to his public agency. Fla. Stat. s. 112.313(7)(a)(1975). But, where the subject administrator's decision to resign his public employment predated the district's decision to employ a consulting engineer, and as the administrator was in no way involved with that decision or with bid specifications or determinations, no interference with public duty is evidenced. Therefore, pursuant to s. 112.316, no prohibited conflict is deemed to be created in the district's awarding the bid to its former part-time administrator.

QUESTION:

Would a prohibited conflict of interest be created were an erosion prevention district to contract for consulting engineer services with a firm in which the former part-time administrator of the district holds a material interest?

Your question is answered in the negative.

Information supplied our staff indicates that Mr. Arthur V. Strock resigned his position as part-time administrator of the erosion prevention district effective September 30, 1976. Prior to that date, the engineering firm which bears his name and in which he owns a material interest submitted a bid to become consulting engineer for the district. Mr. Strock has informed our staff that he was not involved in the decision to engage the services of a consulting engineer, did not participate in formulating the bid specifications, and played no part in selection of the successful bidder. Further, his decision to resign his part-time employment predated the district's decision to employ a consulting engineer.

The Code of Ethics for Public Officers and Employees provides in relevant part 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 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).]

An employee of a political subdivision thus is prohibited from privately selling services to his agency or to any agency of that political subdivision. As Mr. Strock has resigned his position with the district, however, he no longer is an employee of that political subdivision. Accordingly, s. 112.313(7), quoted above, is inapplicable inasmuch as the district's acceptance of his bid would occur after the date of his termination of employment. It may be argued, however, that the submittal of a bid by Mr. Strock during the time he was employed by the district constitutes a violation of the above-quoted statute. However, Florida Statute s. 112.316(1975) provides as follows:

Construction. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city or other political subdivision of the state involved.

In our view, each standard of conduct must be read in light of the mandate of the above-quoted provision. As Mr. Strock's decision to resign predated the district's decision to employ a consulting engineer, and as Mr. Strock was in no way involved with that decision or with bid specifications or determinations, we perceive no interference with the full and faithful discharge of his public duties in the submittal of a bid or in the subsequent awarding thereof. Accordingly, no prohibited conflict of interest is deemed to be created in the district's awarding the bid to its former part- time administrator.