CEO 76-157 -- September 13, 1976

CONFLICT OF INTEREST

CITY EMPLOYEE CONTRACTING WITH CITY TO PROVIDE SANITATION SERVICE

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

Prepared by: Gene Rhodes

SUMMARY:

An employee of a political subdivision is prohibited by Florida Statute s. 112.313(3) from acting privately to sell services to any agency of that political subdivision. The Code of Ethics further provides, however, that it is not the intent of the law to preclude private pursuits which do not interfere with the full and faithful discharge of public duty. Where an employee of a municipal parks and recreation department is the low bidder on a contract with the city for providing trash pickup in city parks, and where the employee's duties in no way involve approval of or the giving of advice or recommendations as to such contracts, there is no interference with the discharge of public duty. Accordingly, no prohibited conflict of interest is deemed to be constituted by such contractual service.

QUESTION:

Does a prohibited conflict of interest exist where a city contracts for sanitation service with a city employee who was the only bidder or low bidder for the contract?

This question is answered in the negative.

You advised our staff by telephone that you recently accepted bids for a contract to provide trash and garbage pickup to your city parks. The only bid received, and therefore the lowest bid, was submitted by an employee of the city's parks and recreation department who serves as a toll attendant on the city fishing pier. The city council entered into the above-described contract and now wishes to know if such action created a conflict of interest for the subject employee.

The Code of Ethics states in relevant 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 agency thereof, if he is serving as an officer or employee of that political subdivision. . . . This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.

[Fla. Stat. s. 112.313(3)(1975); emphasis supplied.]

The emphasized portion of this provision prohibits a public employee from acting in a private capacity to sell services to any agency of his political subdivision. However, s. 112.313(3) must be read in light of the following section of the Code of Ethics.

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. [Fla. Stat. s. 112.316(1975).]

This provision makes it clear that no provision of the code shall be construed to prohibit a public employee from following any pursuit that does not interfere with the full and faithful discharge of his public duties. Each standard of conduct must be read with this qualification in mind. The subject city employee is not in a position to supervise or regulate the city council, which enters into such contracts for the city. Nor do the employee's duties in any way involve approval or the giving of advice or recommendations as to contracts relating to sanitation service. Furthermore, the use of competitive bidding procedures gives additional insulation against the possibility of improper self-dealing. This being the case, we find that the subject contract does not interfere with the full and faithful discharge of the subject employee's duties. Thus, said contract does not create a prohibited conflict of interest for the employee.

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 . . . 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)(a)(1975).]

This provision first prohibits a public employee from having employment with a business entity which is doing business with the agency by which he is employed. As owner/operator of the sanitation service, the subject employee does have employment with a business entity doing business with the city council. [See Fla. Stat. s. 112.312(3)(1975).] However, the employee's public agency is the parks and recreation department rather than the city council; therefore, his business entity is not doing business with his agency and this prohibition becomes inapplicable.

The above-quoted provision next prohibits a public employee from having a contractual relationship with an agency which is subject to the regulation of his public agency. Of course, the parks and recreation department is subject to the regulation of the city council rather than vice-versa. Consequently, this prohibition does not prohibit the contractual relationship you describe.

In summary, the subject employee is not prohibited by any provision of the Code of Ethics from simultaneously being employed by the city's parks and recreation department and having the above- described contract with the city council.