CEO 80-20 -- March 20, 1980

CONFLICT OF INTEREST

SPOUSE OF DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES DEPUTY DISTRICT ADMINISTRATOR EMPLOYED BY COMPANY CONTRACTING WITH DISTRICT

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

Prepared by: Phil Claypool

SUMMARY:

No prohibited conflict of interest exists when the spouse of a deputy district administrator for the Department of Health and Rehabilitative Services is employed by a company which is contracting with the district. Section 112.313(3), F. S., prohibits a public employee from acting in an official capacity to purchase any services for his public agency from a business entity in which his spouse is an officer, partner, director, or proprietor or in which she owns more than a 5-percent interest; however, in this instance the spouse has no interest in the company except as an employee. Section 112.313(7) is inapplicable because it is the spouse rather than the public employee who holds employment with a business entity doing business with his public agency. The deputy district administrator advises that he will have "no direct connection with the monitoring of the contract," but it is cautioned that there could be the appearance of a violation of s. 112.313(6), relating to misuse of public position, were he to use his official position in any matter affecting the contract with his wife's employer.

QUESTION:

Does a prohibited conflict of interest exist when I, a deputy district administrator for the Department of Health and Rehabilitative Services, am married to an employee of a company which is contracting with the district?

Your question is answered in the negative.

In your letter of inquiry you advise that you are the Deputy District Administrator of District Eight of the Department of Health and Rehabilitative Services, which district previously had a contract with a particular consulting firm for studying the feasibility of an intermediate care facility for the mentally retarded in Lee County. This contract was completed June 30, 1979, you advise; as a result of that project, the district sought to contract for the actual development of the facility. As a result of discussions with several firms, district personnel decided to award the contract to the firm which had done the feasibility study, with the contract to run from February 1, 1980, to January 30, 1981. You further advise that you had no direct connection with the decision to award the contract, which was made by the developmental services program supervisor with the advice and consent of the district administrator, and you will have no direct connection with the monitoring of the contract. Finally, you advise that you recently married a person who is employed by the firm which is being awarded the contract to develop the facility. Your wife has no interest in the firm other than as a paid employee, you advise.

The Code of Ethics for Public Officers and Employees provides in 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.

[Section 112.313(3), F. S.]

This provision prohibits you from acting in an official capacity to purchase any services for your agency from a business entity in which your spouse is an officer, partner, director, or proprietor or in which she owns more than a 5-percent interest. However, this provision is not applicable since your wife has no interest in the company except as an employee.

The Code of Ethics also provides:

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.]

This provision prohibits a public employee from being employed by a business entity which is doing business with his agency. However, this provision also is not applicable because you are not employed by the consulting firm. Nor does the provision contain any prohibition upon the affairs of a public employee's spouse.

In addition, we wish to point out that the Code of Ethics contains the following prohibition:

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.]

Even though we note that you advise that you will have "no direct connection with the monitoring of the contract," we wish to caution you that there could be the appearance of a violation of this provision of the Code of Ethics were you to use your official position in any matter affecting the contract with your wife's employer.

Accordingly, we find that no prohibited conflict of interest exists when your spouse is employed by a company contracting with a district of the Department of Health and Rehabilitative Services while you serve as deputy district administrator.