CEO 76-204 -- November 18, 1976

CONFLICT OF INTEREST

CITY COMMISSIONER EMPLOYED BY AUTOMOBILE AGENCY WISHING TO SELL AUTOMOBILES TO CITY

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

Prepared by: Phil Claypool

SUMMARY:

Pursuant to Florida Statute s. 112.313(7)(a)(1975), a public officer is prohibited from being employed by a business entity which is doing business with the agency of which he is an officer. Accordingly, a prohibited conflict of interest would exist were an automobile dealership which employs a city commissioner to sell equipment by competitive bid to the city.

QUESTION:

Would a prohibited conflict of interest be created were a city commissioner to be employed by an automobile dealership which sells equipment by competitive bid to the city which he serves as commissioner?

Your question is answered in the affirmative.

You have stated in your letter of inquiry that ____ the senior commissioner of the city commission for the City of ____ is employed as a salesman for an automobile dealership which wishes to submit bids to the city from time to time pursuant to public invitations to bid. The income ____ makes from his employment consists solely of commissions from sales that he has made; neither he nor his spouse nor any of his children is an officer, partner, director, proprietor, or shareholder of the dealership. Any bid submitted to the city would be submitted through the dealership and not through a particular salesman, with the result that ____ would receive no commissions if the dealership were the successful bidder.

You have further stated in your letter and over the telephone that the specifications for bidding are generally set by the head of the department which wishes to purchase the equipment, that the board of commissioners may discuss such specification to bid, and that the board later accepts one of the bids on behalf of the city. To your knowledge, the lowest bid invariably is accepted. Thus, all purchases relevant to your inquiry are made by contract between the city and the seller.

The Code of Ethics for Public Officers and Employees 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 . . . . [Fla. Stat. s. 112.313(7)(a)(1975).]

This provision prohibits a public officer from being employed by a business entity which is doing business with the agency of which he is an officer. Therefore, were the dealership which employs Commissioner ____ to sell equipment to the City of ____, this statute would be violated.

Accordingly, we find that a prohibited conflict of interest would be created were Commissioner ____ to be employed by an automobile dealership which sold equipment by competitive bid or otherwise to the City of ____, regardless of whether Commissioner ____ received commissions from such sales.

It is possible that one or more bills will be introduced during the 1977 Legislative Session which would provide a limited exception to Florida Statute s. 112.313(7) for situations involving competitive bidding. We feel certain that your elected representatives would welcome your opinion on such proposed legislation.