CEO 77-163 -- October 24, 1977

CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST

SCHOOL BOARD MEMBER EMPLOYED BY COMPANY BIDDING TO DO BUSINESS WITH THE BOARD

To: Robert Renick, Dade County School Board, Miami

Prepared by: Bonnie Johnson

SUMMARY:

Pursuant to the exemption contained in s. 1(b), Ch. 77-349, Laws of Florida, relating to competitive bidding, no prohibited conflict of interest would be created were a company which employs a school board member to do business by competitive bid with the school board, provided the restrictions, procedures, and disclosure contained in that statute are adhered to. Based on the rationale contained in CEO 77-62, the subject school board member may abstain from voting on a bid recommendation in this matter submitted to the board by a member of its staff.

QUESTIONS:

1. Would a prohibited conflict of interest be created were the company by which I am employed to do business by competitive bid with the school board of which I am a member, provided I take no part in the submission of the bid or in the determination of the bid specifications?

2. Should the school board staff recommend that the board accept a bid submitted by the company by which I am employed, may I legally abstain from voting on such bid recommendation?

Question 1 is answered in the negative, subject to certain conditions which are set forth below.

Section 112.313(7)(a), F. S. 1975, provides in relevant part 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. [Section 112.313(7)(a), F. S. 1975.]

A public officer accordingly is prohibited from holding employment with a business entity which is doing business with that officer's public agency. However, Ch. 77-349, Laws of Florida, enacted during the 1977 Legislative Session, creates certain limited exemptions to the above-quoted prohibition, including the situation where

the business is awarded under a system of sealed, competitive bidding to the lowest or best bidder and the official or his spouse or child have in no way participated in the determination of the bid specifications or the determination of the lowest or best bidder; and the official or his spouse or child has in no way used or attempted to use his influence to persuade the agency or any personnel thereof to enter such a contract other than by the mere submission of the bid; and the official, prior to or at the time of the submission of the bid has filed a statement with the Department of State if he is a state officer or employee, or with the Clerk of the Circuit Court of the county in which the agency has its principal office if he is an officer or employee of a political subdivision, disclosing his, or his spouse's or child's interest and the nature of the intended business. . . . [Section 1, Ch. 77-349, Laws of Florida.]

Accordingly, so long as the above restrictions, procedures, and disclosure are followed by you when the school board enters into a contract with the company by which you are employed, the Code of Ethics does not prohibit such business transactions.

Question 2 is answered in the affirmative.

Enclosed is a copy of a previous opinion of this commission, CEO 77-62, the rationale of which is equally applicable to your inquiry. Further, we have previously determined that a voting conflict of interest is created where a public officer is called upon to vote on a matter affecting the interests of his employer. CEO 75-136 and Complaint No. 77-09. Accordingly, should the school board of which you are a member be faced with voting to accept a bid submitted by the company which employs you, you may elect either to: Exercise your right to vote in spite of the conflict and therefore be required to file a Memorandum of Voting Conflict (CE Form 4) or abstain from voting on the matter. Section 112.3143, F. S.