CEO 81-28 -- May 14, 1981

CONFLICT OF INTEREST

COUNTY COMMISSIONER EMPLOYED BY ENGINEERING FIRM DOING BUSINESS WITH COUNTY AND REPRESENTING CLIENTS BEFORE COUNTY COMMISSION

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

SUMMARY:

A prohibited conflict of interest would be created were a county commissioner to be employed by an engineering firm doing business with the county. Section 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 exemption under Section 112.313(12)(b), F. S., where business is awarded under a system of sealed, competitive bidding to the lowest or best bidder would not apply in this case as the selection of consulting engineering firms by the county was not handled through a sealed competitive bidding process, but rather under the Consultants' Competitive Negotiation Act, Section 287.055, F. S.

QUESTION:

Would a prohibited conflict of interest be created were you, a county commissioner, to be employed as a salesman by an engineering company which does business with the county from time to time and which represents clients before the county commission?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you are a County Commissioner who has been offered employment as a salesman with an engineering company which is on a selective list as engineering consultants for the County and which will be doing business with the County from time to time. You further advise that the engineering company also prepares and presents plats before the County Commission in behalf of private clients. You will receive only a fixed salary as a salesman for the company, you write, and therefore, it is your contention that you will not receive a direct benefit from the business relationship between the company and the County. You question whether you may be employed to represent the company before public bodies other than your own within the State and the County or, alternatively, before public bodies within the State but outside of the County.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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. (1979).]

This provision prohibits a public officer from being employed by a business entity which is doing business with his agency. This clearly would be the situation were you to accept the employment you propose.

An exemption to this prohibition exists where:

The business is awarded under a system of sealed, competitive bidding to the lowest or best bidder and:

1. The official or his spouse or child has in no way participated in the determination of the bid specifications or the determination of the lowest or best bidder;

2. 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

3. 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. [Section 112.313(12)(b), F. S. (1979).]

The selection of consulting engineering firms by the County is not done through a sealed competitive bidding process, you advise, but rather is handled under the Consultants' Competitive Negotiation Act, Section 287.055, F. S. Thus, the above-quoted exemption does not apply here. You suggest that it is "inequitable" that, because the Act requires the purchase of engineering services by the County without a sealed competitive bidding procedure, you might be involved in a prohibited conflict of interest. We express no opinion here as to the equity of the situation, but we do note that the Consultants' Competitive Negotiation Act was in existence when the exemptions of Section 112.313(12) were enacted in 1977. If the Legislature had intended to exempt certain conflicts of interest arising under that Act, it easily could have done so.

In your letter of inquiry you reference a previous advisory opinion, CEO 76-124, as finding that no prohibited conflict of interest existed where a city councilman received commissions on sales made to the city by persons other than himself. However, in that opinion the employer of the city councilman was not selling any goods or services to the city at all, unlike the situation you have presented.

In addition, you reference another advisory opinion, CEO 80-18. That opinion was based on a previous opinion, CEO 77-51, in which we found no prohibited conflict of interest in a school board member's employment with a corporation selling educational and psychological testing materials to the school board. The basis for our finding in that opinion was twofold: first, the school board member did not represent the company within the area of his school district, and secondly, the materials sold by the company were not available to the school district from alternative sources. Although you would not be involved personally in business between the engineering company and the County, there clearly are other sources of engineering services available to the County.

Accordingly, we find that a prohibited conflict of interest would be created were you to be employed as a salesman by an engineering company which does business with the County.