CEO 81-38 -- June 18, 1981

CONFLICT OF INTEREST

SCHOOL BOARD EMPLOYEE MARRIED TO DAUGHTER OF OWNER OF COMPANY SELLING MATERIALS TO THE SCHOOL BOARD

To: Mr. Randall N. Thornton, Sumter County School Board Attorney

SUMMARY:

No prohibited conflict of interest exists where the finance officer of a county school board is married to the daughter of the owner of an electrical supply company which supplies materials to the school board, where neither the finance officer nor his wife owns an interest in the company or receives any financial benefit from it. Were the finance officer's wife to inherit or be given an interest in the company, no prohibited conflict of interest would be created if the company were to continue to sell to the school board, as the finance officer still would not have any financial interest in the company and as the finance officer would have no authority to act as a purchasing agent in the purchase of materials from the company.

This is in response to your request for an advisory opinion from the Commission on Ethics in behalf of Mr. William A. Suber, an employee of the Sumter County School Board, on two questions which are answered separately below. Your first question is substantially as follows:

QUESTION 1:

Does a prohibited conflict of interest exist where the Finance Officer of a County School Board is married to the daughter of the owner of an electrical supply company which supplies materials to the School Board?

This question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advised that Mr. Suber recently married the daughter of the owner of an electrical supply company which for years has supplied electrical materials to the Sumter County School Board, both under construction contracts awarded by sealed bidding procedures and under regular purchases. At the present time, you advise, neither Mr. Suber nor his wife owns an interest in the company or receives any financial benefit from it, although it is possible that in the future his wife may inherit or be given an interest in the company.

You also advised that Mr. Suber is the Finance Officer for the School Board. In that position, he is responsible for handling all financing for the School Board and for writing checks for purchases after the expenditures have been approved by the School Board. Mr. Suber has no responsibility for writing bid specifications on items to be purchased by bid, you advised, and although he opens bids for the School Board, it is the Board's responsibility to award contracts under bid. In addition, you advised that where purchases are made by purchase order, Mr. Suber must review the purchase order to determine whether there are sufficient funds in the Board's budget for the purchase before the purchase order is sent to the vendor. Thus, he has no authority to determine what items are to be purchased or which vendor is to make the sale; his role in the purchase order system is limited to ascertaining whether the Board has sufficient funds in its budget to pay for the item.

The Code of Ethics for Public Officers and Employees provides:

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), Florida Statutes (1979).]

We find that this provision of the Code of Ethics does not prohibit the situation you have described, since neither the subject Finance Officer nor his wife has any interest in the company which is selling materials to the School Board. For the same reason, we find that Section 112.313(7)(a), Florida Statutes, which prohibits the subject Finance Officer from having any employment or contractual relationship with a business entity which is doing business with his agency, does not apply.

Accordingly, we find that no prohibited conflict of interest exists where the subject Finance Officer is married to the daughter of the owner of an electrical supply company which supplies materials to the School Board.

QUESTION 2:

Would a prohibited conflict of interest exist were the wife of a Finance Officer of a County School Board to own an interest in an electrical supply company which supplies materials to the School Board?

This question also is answered in the negative.

Section 112.313(3), Florida Statutes, which is quoted above in our response to your first question, prohibits a public employee acting in his official capacity as a purchasing agent from purchasing any goods for his own agency from a business entity of which his spouse is an officer, director, or owner of greater than a five percent interest. In our opinion, the subject Finance Officer in his official capacity does not act as a purchasing agent. His authority in the School District purchasing system is limited to reviewing purchase orders to determine whether there are sufficient funds to pay for them and to writing checks in behalf of the School Board after the expenditures have been approved by the Board. He has no authority to determine which vendors to purchase from, or to determine prices or quantities of materials to be purchased. In our view, it is employees with this sort of authority who were intended by the Legislature to be included as "purchasing agents" in the prohibition of Section 112.313(3).

Since the subject Finance Officer would not have any financial interest in the company, he would not be "acting in a private capacity" to sell goods to the School Board, as would be prohibited under Section 112.313(3). Nor would he have any employment or contractual relationship with the electrical supply company as might violate Section 112.313(7)(a), Florida Statutes.

Accordingly, we find that no prohibited conflict of interest would be created were the wife of the subject Finance Officer to own an interest in an electrical supply company which sells materials to the School Board which employs him as Finance Officer.