CEO 77-178 -- December 14, 1977

CONFLICT OF INTEREST

MEMBER OF CITIZENS PLANNING COMMITTEE FOR MUNICIPAL AIRPORT CONTRACTING WITH MUNICIPALITY TO CONSTRUCT HANGAR AT AIRPORT

To: J. H. Roberts, Jr., City Attorney, Lakeland

Prepared by: Phil Claypool

SUMMARY:

A public officer is prohibited by s. 112.313(3), F. S., from acting in a private capacity to sell any goods or services to the political subdivision he serves or to any agency of that political subdivision. However, Ch. 77-349, Laws of Florida, provides several exemptions to s. 112.313(3), one of which occurs where the officer is a member of an advisory board and a waiver by two-thirds vote of the appointing body is granted upon the officer's disclosure of the intended transaction. Accordingly, subject to such disclosure and a waiver by the appointing body, a member of a citizens planning committee for a municipal airport is not prohibited from contracting with that municipality to construct a hangar at the municipal airport.

QUESTION:

Would a prohibited conflict of interest exist were a member of a citizens planning committee for a municipal airport to contract with that municipality to construct a hangar at the airport?

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

In your letter of inquiry you advise that Mr. Robert Lewis, a member of the Citizens Planning Committee for the Lakeland Municipal Airport, is the sole owner of a corporation which is the low bidder on the proposed construction of a hangar at the airport on property owned by the city. You also advise that the function and authority of the committee is solely to serve as an advisory board with a view toward aiding and implementing the long-range development of the airport. In this regard, you have stated in a telephone conversation with our staff that the committee recommended to the city commission on June 6, 1977, that the city construct two 20-space hangars at the airport. While the subject committee member was present at that meeting, the minutes of the meeting do not reflect that the motion to make the recommendation to the city commission was either made or seconded by him. Then, on October 18, 1977, bids were received by the city for construction of the hangars. You also advise that the preparation of the invitation to bid and the specifications for such improvements fell within the responsibility of the public works department and the purchasing department of the city, and the award of the contract falls within the responsibility of the purchasing department and the city commission. Members of the committee have no control over such issues.

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 or services to the political subdivision he serves or to any agency thereof. We have previously found that a public officer is acting in a private capacity to sell when a corporation of which he owns a material interest (more than 5 percent) sells. CEO's 75-196 and 76-23. Thus, a member of a municipal citizens planning committee seemingly is prohibited from entering into a contract with that municipality to construct a hangar on city property.

However, Ch. 77-349, Laws of Florida, provides several exemptions to the requirements of s. 112.313(3), above. That act provides in relevant part as follows:

EXEMPTION. -- The requirements of subsection (3) and subsection (7) as they pertain to persons serving on an advisory board may be waived in a particular instance by the body which appointed the person to the advisory board upon a full disclosure of the transaction or relationship and an affirmative vote in favor of waiver by two-thirds vote of that body. In instances where appointment to the advisory board is made by an individual, waiver may be effected after public hearing by a determination of the appointing person and full disclosure of the transaction or relationship by the appointee. In addition, no person shall be held in violation of subsection (3) or subsection (7) if:

(b) 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. . . . [Fla. Stat. s. 112.313(12), created by s. 1, Ch. 77- 349, Laws of Florida.]

You have advised our staff in a telephone conversation that the subject committee member did not follow this procedure when submitting his bid because he did not file a statement disclosing his interest prior to or at the time of the submission of the bid. Therefore, this competitive bidding exemption does not apply here.

In addition, the act provides that a member of an "advisory board" may do business with his political subdivision upon full disclosure and waiver by a two-thirds vote of the appointing body. Thus, the question becomes whether the citizens planning committee of which Mr. Lewis is a member is an "advisory board."

In making this determination we note that the Code of Ethics provides a definition of "advisory body," a term which has a specific function in determining who must file financial disclosure under s. 112.3145, F. S. That definition is as follows:

‘Advisory body’ means any board, commission, committee, council, or authority, however selected, whose total budget, appropriations, or authorized expenditures constitute less than 1 percent of the budget of each agency it serves or $100,000, whichever is less, and whose powers, jurisdiction, and authority are solely advisory and do not include the final determination or adjudication of any personal or property rights, duties, or obligations, other than those relating to its internal operations. [Section 112.312(1), F. S. (1976 Supp.).]

This definition contains essentially a two-part test, the first relating to the budget of the body and the second relating to its powers and authority. However, had the Legislature intended that the exemption contained in Ch. 77-349 be granted only to members of "advisory bodies," it easily could have done so. Ordinarily, a court in construing a statute will not read into the statute words which do not appear therein and which it does not seem the Legislature intended should be there by express inclusion or clear implication. Atlantic Coastline Railroad Co. v. Boyd, 102 So.2d 397 (Fla. 1958), Florida Industrial Commission ex rel. Special Disability Fund v. National Trucking Co., 107 So.2d 397 (Fla. 1958). Therefore, we are of the opinion that the Legislature in Ch. 77-349 intended to create an exemption for boards (in a generic sense) whose powers and authority are advisory, without regard to the size of their budgets.

In this respect, we note that Resolution No. 2056 of the City of Lakeland establishes the citizens advisory committee and provides its purpose and function as follows:

The purpose of the Committee shall be to serve as the vehicle through which the citizens of the community shall participate, assist and advise in the planning process for the Lakeland Municipal Airport with a view toward aiding and implementing the long range development of that Airport. The Committee shall collect information concerning the needs, activities, and proposed facilities and programs at the Lakeland Municipal Airport, and for the improvement thereof, and shall make recommendations to the Airport Director and to the City Commission of the City of Lakeland.

Thus, it appears that the powers and authority of the committee are solely advisory, and therefore that the exemption contained in Ch. 77-349 is applicable to the members of the committee.

Accordingly, we find that, so long as the requirements of Ch. 77-349, Laws of Florida, regarding disclosure and waiver are met, a prohibited conflict of interest would not exist were the subject member of the Citizens Planning Committee for the Lakeland Municipal Airport to contract with the city to construct a hangar at the airport.

Please note that we have no jurisdiction to advise you as to the effect of any provisions of Ch. 839, F. S. 1975, or any other state law outside part III, Ch. 112, F. S., or s. 8, Art. II, State Const., upon the subject employee in these circumstances.