CEO 77-130 -- August 24, 1977

CONFLICT OF INTEREST

MUNICIPAL PLANNING BOARD MEMBER OWNER AND EMPLOYEE OF COMPANY BIDDING TO FURNISH SUPPLIES TO CITY

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

Prepared by: Phil Claypool

SUMMARY:

A public officer is prohibited from acting in a private capacity to sell any goods to a political subdivision or any agency thereof, if he is serving as an officer of that political subdivision. Section 112.313(3), F. S. 1975. In CEO 75-196 it was found that an officer acts in a private capacity to sell whenever a business entity in which he owns a material interest sells. Therefore, a member of a municipal planning board generally is prohibited from owning a material interest in a business which is selling to that municipality. However, Ch. 77-349, Laws of Florida, passed during the most recent legislative session, provides a number of limited exceptions to s. 112.313(3), including the following: "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. . . ." Accordingly, so long as these procedures and disclosures are followed, no prohibited conflict of interest would exist were an owner and employee of a company which submits bids for contracts to furnish supplies to a municipality to be appointed to that municipality's planning board.

QUESTION:

Would a prohibited conflict of interest exist were an owner and employee of a company which submits bids for contracts to furnish supplies to a municipality to be appointed to that municipality's planning board?

Your question is answered in the negative, subject to conditions expressed in this opinion.

In your letter of inquiry you advise that ____ is a part owner of, stockholder in, and employee of a company which occasionally submits sealed bids for contracts to furnish supplies to the city's municipal planning board. You also advise that the planning board does not purchase these supplies; nor is it involved in any way with the bidding procedures of the city relating to such purchases.

The Code of Ethics for Public Officers and Employees provides 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. . . . [Section 112.313(3), F. S. 1975.]

This provision prohibits a public officer acting in a private capacity from selling any goods to a political subdivision or any agency thereof if he is serving as an officer of that political subdivision. We have previously found that an officer is acting in a private capacity to sell whenever a business entity in which he owns a material interest sells. See CEO 75-196. Therefore, a member of a municipal planning board generally is prohibited from owning a material interest in a business which is selling to that municipality.

However, Ch. 77-349, Laws of Florida, passed during the most recent legislative session, provides a number of limited exceptions to s. 112.313(3), above, including the following:

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 of 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-required procedures and disclosures are followed, we find that no prohibited conflict of interest would exist were an owner and employee of a company which submits bids for contracts to furnish supplies to a municipality to be appointed to that municipality's planning board.