CEO 76-29 -- February 13, 1976

CONFLICT OF INTEREST

CITY AUDITOR SELLING TO CITY

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

Prepared by: Gene Rhodes

SUMMARY:

Where a municipality contracts with an accounting firm to conduct auditing of the city's accounts, such firm and its employees are deemed to be independent contractors rather than city employees. Inasmuch as they are not deemed to be public employees, members of the firm are not subject to the Code of Ethics. Therefore, such firm is not prohibited by Fla. Stat. s. 112.313(3)(1975) from contracting with the city to design and install a utility billing system.

QUESTION:

Would a prohibited conflict of interest be created if a city were to purchase a utility billing system from the accounting firm which serves as the city auditor?

Your question is answered in the negative.

Your letter of inquiry advises us that the accounting firm which serves as city auditor wants to contract with the city to design and install a utility billing system.

The Code of Ethics for Public Officers and Employees 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 any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. 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.

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

The above-quoted provision, by its own terms, is a prohibition which applies only to public officers and employees -- not to independent contractors. The definition of an independent contractor is generally stated as: "One who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the product or result of his work." 41 Am. Jur.2d Independent Contractors s. 1, (1968). The two elements which distinguish an independent contractor from an employee are: The contractor has an independent business or occupation, and the contractor is not subject to the control of the employer as to manner or detail of performance of the contracted work. See CEO 74-6.

The private accounting firm meets the two conditions set out above for an independent contractor, and its employees, therefore, are neither officers nor employees of the city. Accordingly, the subject firm is not prohibited by the Code of Ethics from selling the utility billing system to the city.

Please note that this commission does not have jurisdiction to offer an opinion as to whether the above-described contract must be awarded through competitive bid procedures, as that question cannot be resolved under part III, Ch. 112. See Fla. Stat. s. 112.322(2)(a)(1975).