CEO 77-60 -- April 21, 1977

CONFLICT OF INTEREST

LAW PARTNER OF COUNTY ATTORNEY DIRECTOR OF BANK WISHING TO BID ON COUNTY FINANCING

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

Prepared by: Bonnie Johnson

SUMMARY:

No prohibited conflict of interest would be created were a county to do business with a bank on whose board of directors sits a law partner of the designated county attorney, which partner performs certain county duties in the absence of the county attorney. Pursuant to s. 112.313(3), F. S. 1975, a public officer is prohibited from acting in a private capacity to sell any realty, goods, or services to his public agency or to any agency within the political subdivision he serves, and it has been determined previously that one acts in a private capacity to sell whenever a business entity of which he is a director sells. See CEO 76-12. However, the term "public officer" is defined to include "any person elected or appointed to hold office in any agency . . . ." Although the appointed county attorney thus constitutes a public officer, the definition is not applicable to his law partner who receives no appointment. Nor is the law partner a county employee but, rather, an independent contractor. See CEO's 75-17 and 76-29. Accordingly, as the county attorney's law partner is not a public officer, the prohibition set forth in s. 112.313(3) is not applicable to him.

QUESTION:

Would a prohibited conflict of interest be created were a county to do business with a bank on whose board of directors sits a law partner of the designated county attorney, which partner performs certain county duties in the absence of the county attorney?

Your question is answered in the negative.

You advise in your letter of inquiry that your law partner is the named attorney for Indian River County and as such advises the various boards of the county. Paychecks are issued to him in his name only for the work performed. As his law partner, you perform certain county duties in his absence, relating both to the board of county commissioners and to the county planning and zoning board.

You further advise that the board of county commissioners is contemplating obtaining commercial bank financing for a county project, and it is anticipated that the requisites for the financing will be submitted to various banks in order that they may submit sealed bids as to their requirements, interest rates, etc. You serve as a director of the First Citrus Bank of Indian River County and seek our advice as to whether your or your law partner's service to the county would preclude that bank's bidding on said financing.

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. [Section 112.313(3), F. S. 1975; emphasis supplied.]

Accordingly, a public officer or employee is prohibited from acting in his private capacity to sell services to his public agency or to any agency within the political subdivision he serves. We have previously determined that one acts in a private capacity to sell whenever a business entity of which he is a director sells. See CEO 76-12. The question before us thus turns on whether you constitute a public officer or employee for purposes of the standards of conduct provisions of the Code of Ethics.

The term "public officer" is defined as follows:

As used in this section, unless the context otherwise requires, the term "public officer" shall include any person elected or appointed to hold office in any agency, including any person serving on an advisory body. [Section 112.313(1), F. S. 1975.]

Your law partner, the appointed county attorney, thus constitutes a public officer but, inasmuch as you have received no appointment, the definition is not deemed to be applicable to your situation. Nor are you a public employee by virtue of your work for the county but, rather, are an independent contractor. See CEO's 75-17 and 76-29.

Accordingly, we find that you are not a public officer or employee for purposes of s. 112.313, F. S., and, consequently, no prohibited conflict of interest would be created were the bank of which you are a director to bid on county financing. We would emphasize, however, that this opinion does not address the issue of whether you constitute a "local officer" subject to financial disclosure, as that question is not before us.