CEO 76-193 -- October 25, 1976

CONFLICT OF INTEREST

CITY EMPLOYEE CONTRACTING WITH CITY FOR PRINTING SERVICES

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

Prepared by: Roger Merriam

SUMMARY:

An employee of a political subdivision is prohibited by Florida Statute s. 112.313(3)(1975) from selling goods or services to that political subdivision or to any agency within the subdivision. An offset press operator within a municipal department of central services, purchasing division, printing activity, accordingly is prohibited from bidding in his private capacity on contracts for city printing needs. Although no conflict of interest has been found to exist in previous opinions based on seemingly similar situations, those opinions related to officers or employees who were totally removed from the purchasing agency and had no role in either purchasing decisions or procedures. In the instant case the employee, by virtue of his service in the printing activity of the purchasing division, is in a position to obtain advance notice of contracts to be let for bid. His proximity to the printing manager, who determines which jobs are to be open for outside bidding, places the subject employee in a position to influence that determination, however indirectly. This proximity, as well as the employee's working knowledge of city bidding specifications and procedures, additionally affords him a distinct advantage over other potential bidders for printing work. Therefore, such employee is prohibited by the above-cited s. 112.313(3) from privately contracting with the city for printing work.

QUESTION:

Would a prohibited conflict of interest be created were a full-time employee of a city's purchasing division, printing activity, privately to provide printing services for the city on a contractual basis?

Your question is answered in the affirmative.

You inform us in your letter of inquiry that an offset press operator in the department of central services, purchasing division, printing activity, desires to bid in his private capacity on contracts for city printing needs. It is our understanding that the printing manager is responsible for deciding whether to use city printing facilities or to contract with commercial printers for particular jobs. You also state that the buying activity of the purchasing division makes the actual solicitation for bids.

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); emphasis supplied.]

The italicized language above prohibits an employee of a political subdivision from selling goods or services to that political subdivision or to any agency of that subdivision. The term "agency" is defined in the Code of Ethics to include

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision therein; or any public school, community college, or state university. [Fla. Stat. s. 112.312(2)(1975).]

As the subject employee's agency is the printing activity, an agency of the city, he is prohibited from selling goods or services to the city or to any of its agencies. Although this commission has found no conflict of interest to exist in seemingly similar situations, we perceive significant distinctions in the instant case. The situations presented in the aforementioned opinions were ones in which the officers or employees concerned were totally removed from the purchasing agency and had no role in either purchasing decisions or procedures.

In question 1 of CEO 76-3, for example, no conflict of interest was found to exist based on s. 112.316 where a member of a municipal electrical board contracted with the city, as his duties in no way related to the contract or to city purchasing procedures. Similarly, in CEO 76-10, no conflict was deemed to be created in a city police officer's privately selling goods to other departments of the city, as his duties did not include approval of or the giving of advice or recommendations as to purchases by city agencies other than the police department. See also CEO's 76-6 and 76-134. In the instant case, however, the employee, by virtue of his service in the printing activity of the purchasing division, is in a position to obtain advance notice of contracts to be let for bid. His proximity to the printing manager, who determines which jobs are to be open for outside bidding, places the subject employee in a position to influence that determination, however indirectly. Moreover, this proximity, as well as the employee's working knowledge of city bidding specifications and procedures, affords him a distinct advantage over other potential bidders for printing work.

As there are situations which the Standards of Conduct are designed to preclude, we accordingly find that a prohibited conflict of interest would be created were the subject employee to contract for printing services with the city.