CEO 77-15 -- February 1, 1977

CONFLICT OF INTEREST

COUNTY COMMISSIONER PURCHASING SURPLUS VEHICLES FROM COUNTY

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

Prepared by: Phil Claypool

SUMMARY:

A prohibited conflict of interest pursuant to s. 112.313(7)(a), F. S. 1975, would be created were a county commissioner to purchase surplus vehicles from the county. As the county of which the subject commissioner is an officer clearly is regulated by the county commission, he would be entering a contractual relationship with an agency subject to the regulation of his agency in violation of the above-cited statute.

QUESTION:

Would a prohibited conflict of interest exist were a county commissioner to purchase surplus vehicles from the county?

Your question is answered in the affirmative.

You advise us in your letter of inquiry that the ____ Commission has declared certain vehicles to be surplus property and has advertised for submission of sealed bids on those vehicles. ____ County Commissioner wishes to bid for and to purchase one or more of these surplus vehicles.

Although the Code of Ethics for Public Officers and Employees prohibits a public officer from selling goods to his own agency, s. 112.313(3), F. S. 1975, that section does not prohibit a public officer from purchasing goods from his own agency. However, the Code of Ethics also provides:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- (a) 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. . . . [Section 112.313(7), F. S. 1975.]

This provision prohibits a public officer from having a contractual relationship with an agency which is subject to the regulation of the agency of which he is an officer. 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. (1976 Supp.).]

The county of which the subject commissioner is an officer clearly is regulated by the county commission. Although the two do not constitute separate agencies within the definition contained in s. 112.312(2), we nevertheless find the above-quoted s. 112.313(7) to be applicable based upon a distinction between an agency and the head of that agency. Were the subject commissioner to purchase property from the county, he would have a contractual relationship with the county, an agency which is regulated by the county commission, the agency head. To interpret this provision otherwise would incongruously prohibit a county commissioner from contracting with the county's planning and zoning department, for example, while allowing him to contract with the county commission itself. A similar example of this rationale may be found in CEO 76-188, in which we found a prohibited conflict in an assistant school superintendent's purchasing surplus school property from the school board.

Although we have ruled previously that no prohibited conflict of interest is created where city employees purchase surplus city property sold at public auction (CEO 76-145), we perceive a significant distinction in the instant case. In the aforementioned situation the employees' agencies were municipal departments which had no direct role in policymaking decisions of the governing body of this political subdivision. By virtue of the subject official's position and rank in county government, however, he has influence and advantages not enjoyed by employees of the county. We do not mean to imply that he has used or would ever use these advantages in an unethical manner, but we do wish to point out that it was the county commission which declared these vehicles to be surplus.

Accordingly, we find that a prohibited conflict of interest would be created were the subject county commissioner to purchase surplus vehicles from the county.