CEO 80-34 -- May 21, 1980

CONFLICT OF INTEREST

MEMBER OF STATE BOARD OF ACCOUNTANCY ALSO OFFICER AND EMPLOYEE OF COMPANY DOING BUSINESS WITH BOARD AND OTHER AGENCIES OF GOVERNMENT

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

Prepared by: Phil Claypool

SUMMARY:

A public officer is prohibited, under s. 112.313(3), F. S., from being an officer of a business entity which is selling any goods or services to his public "agency," as that term is defined in s. 112.312(2), F. S. The "agency" of a professional board member is deemed to be the board on which he serves. Although the Department of Professional Regulation has been reorganized so that the various professional boards now share with the department the powers they formerly exercised independently, nothing in the reorganization act indicates that a board member's public responsibility extends beyond the affairs of the board to other affairs of the department. Reference is made to ch. 79-36, Laws of Florida, which places the various professional boards and their staffs in the Division of Professions within the department, and to CEO 79-78, in which this commission found that the "agency" of the Executive Director of the State Board of Accountancy is that board. Accordingly, the Code of Ethics prohibits a State Board of Accountancy member from being an officer and employee of a business entity which is doing business with that board, except to the extent that one of the exemptions in s. 112.313(12) applies. No conflict of interest would be created, however, were the board member's business to do business with any other agency of the executive branch of state government, including the Department of Professional Regulation.

QUESTION:

Would a prohibited conflict of interest be created when a member of the State Board of Accountancy is an officer and employee of a company doing business with the board or with other agencies of the executive branch of state government?

In your letter of inquiry you advise that ____, your brother, has been appointed to the State Board of Accountancy. You also advise that he is an officer and employee of a business supply company of which you are president.

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. 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.

(d) Beginning public employment.

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

This provision prohibits a public officer from being an officer of a business entity which is selling any goods or services to his own agency. Similarly, s. 112.313(7)(a), F. S., prohibits a public officer from being employed by a business entity which is doing business with his agency.

The term "agency" is defined in the Code of Ethics to mean

. . . any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university. [Section 112.312(2), F. S.]

We are of the opinion that the "agency" of a professional board member is the board on which he or she serves. Although the Department of Professional Regulation has been reorganized so that the various professional boards now share with the department the powers they formerly exercised independently, nothing in the reorganization acts indicates that a board member's public responsibility extends beyond the affairs of the board to other affairs of the department. For example, see ch. 79-36, Laws of Florida, which places the various professional boards and their staffs in the Division of Professions within the department, while the Division of Administrative Services is to be responsible for finance and accounting services. See also CEO 79-78, in which we found that the "agency" of the Executive Director of the State Board of Accountancy is that board, since his primary responsibilities relate to that board.

Therefore, the subject board member is prohibited from being an officer or employee of a business entity which is doing business with the State Board of Accountancy. Please be advised that there are several exemptions to this prohibition, which exemptions are contained in s. 112.313(12), F. S. As your letter did not include facts which would indicate that any of these exemptions apply, we would refer you to CEO 77-182 for information about these exemptions.

Accordingly, we find that the Code of Ethics for Public Officers and Employees prohibits a State Board of Accountancy member from being an officer and employee of a business entity which is doing business with the board except to the extent that one of the exemptions in s. 112.313(12) applies. We further find that the Code of Ethics would not prohibit a member of the State Board of Accountancy from being an officer and employee of a company which is doing business with any other agency of the executive branch of state government, including the Department of Professional Regulation.