CEO 77-172 -- November 10, 1977

CONFLICT OF INTEREST

SPOUSE OF EMPLOYEE OF DEPARTMENT OF CITRUS OWNING FUNDRAISING BUSINESS WHICH SELLS CITRUS

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

Prepared by: Phil Claypool

SUMMARY:

Only two provisions of the Code of Ethics for Public Officers and Employees specifically deal with a public officer or employee and his or her spouse: Section 112.313(3), relating to doing business with one's agency, and s. 112.313(4), regarding unauthorized compensation. Neither provision, however, addresses the issue of a merchandising specialist with the Department of Citrus assisting as part of his official duties his spouse's fundraising business by furnishing services and materials promoting Florida citrus. However, were the employee to express favoritism toward his spouse's business, he potentially would be in violation of s. 112.313(6), F. S., prohibiting the misuse of public office for private benefit.

QUESTION:

Would a prohibited conflict of interest be created were a merchandising specialist with the Department of Citrus to assist as part of his official duties his spouse's fundraising business by furnishing services and materials promoting Florida citrus?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advise that Mr. Douglas Lee is employed by the Department of Citrus as a merchandising specialist, which requires him to promote Florida citrus and citrus products to the retail and institutional trade in cities outside the state. In addition, you advise that the subject employee's spouse has formed a fundraising business and is actively working with church and school groups in their fundraising projects. The subject employee is not involved in his spouse's business in any way. However, he wonders whether he can offer his spouse's business the same citrus promotional help as he offers to other fund raisers, such as special kits to explain a citrus fundraising program, materials on how to sell citrus, or forms to help with the paperwork involved in fundraising activities.

There are only two provisions of the Code of Ethics for Public Officers and Employees which specifically deal with a public officer or employee and his or her spouse:

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 . . . . [Fla. Stat. s. 112.313(3)(1975).]

UNAUTHORIZED COMPENSATION. -- No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity. [Fla. Stat. s. 112.313(4)(1975).]

Under the facts you have presented, neither of these provisions addresses the question you have asked.

Accordingly, we find that there would be no prohibited conflict of interest were a merchandising specialist with the Department of Citrus to assist his spouse's fundraising business as part of his official duties by furnishing services and materials promoting Florida citrus. However, we must caution this employee that any favoritism expressed toward his spouse's business may constitute a violation of the following provision of the Code of Ethics:

MISUSE OF PUBLIC POSITION. -- No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), F. S. 1975.]