CEO 82-71 -- September 20, 1982

CONFLICT OF INTEREST

SCHOOL BOARD MEMBER'S SPOUSE SERVICING EQUIPMENT OF SCHOOL DISTRICT; SCHOOL BOARD MEMBER'S SON EMPLOYED BY SCHOOL DISTRICT

To: Mrs. Joanne Gibson, Candidate for Glades County School Board

SUMMARY:

As long as the spouse of a school board member remains the only source of supply for air conditioning and refrigeration service work within the county, no prohibited conflict of interest would be created were he to perform work for the school district. Although Section 112.313(3), Florida Statutes, prohibits a partnership of which a school board member is a partner from selling any services to the school district, Section 112.313(12)(e), Florida Statutes, as amended by Chapter 82-98, Laws of Florida, provides an exemption where the business entity is the only source of supply within the political subdivision and full disclosure is made. No prohibited conflict of interest would be created were a business of which a school board member is a partner to sell services or equipment to the school district by sealed bid, so long as the conditions of the competitive bidding exemption contained in Section 112.313(12)(b), Florida Statutes, are followed. No provision of the Code of Ethics would prohibit an individual from serving on the school board while his child is employed by the school board.

QUESTION 1:

Would a prohibited conflict of interest be created were you to serve as a member of a district school board where your husband's business, of which you are a partner, services equipment belonging to the school district?

This question is answered in the affirmative, subject to the exception noted below.

In your letter of inquiry and in a telephone conversation with our staff, you advise that you are a candidate for the Glades County School Board. You also advise that your husband services air conditioning and refrigeration equipment. This business is maintained as a partnership, with both you and your husband being the partners. At one time, you advise, your husband had contracted with the School District to perform preventive maintenance on the District's air conditioning and refrigeration equipment. However, for the past five years, he has been performing service work on the District's equipment when called by the maintenance department, with the School Board merely approving the payment of a monthly bill. Finally, you advise that your husband is the only licensed air conditioning and refrigeration service man in the County, and that the County does require a license to perform this type of work.

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), Florida Statutes (1981).]

This provision would prohibit a partnership of which you are a partner from selling any services to the School District, if you were a member of the School Board.

However, there is an exemption to this prohibition where:

The business entity involved is the only source of supply within the political subdivision of the officer or employee, and there is full disclosure of the officer's or employee's interest in the business entity to the governing body of the political subdivision. [Section 112.313(12)(e), Florida Statutes (1981).]

Effective October 1, 1982, this provision has been amended to provide:

The business entity involved is the only source of supply within the political subdivision of the officer or employee, and there is full disclosure by the officer or employee of the officer's or employee's interest in the business entity to the governing body of the political subdivision prior to the purchase, rental, sale, leasing, or other business being transacted. [Section 112.313(12)(e), Florida Statutes, as amended by Chapter 82-98, Laws of Florida.]

As your business is the only source of supply for air conditioning and refrigeration service work available to the School District within the County, this exemption would permit your husband to continue to perform service work for the School District if you are elected to the School District, so long as he remains the sole source of supply within the County. Please note that we have promulgated CE Form 4A, "Disclosure of Business Transaction, Relationship, or Interest," for use in making the disclosure to the School Board which would be required by this exemption.

Accordingly, as long as your husband remains the only source of supply for air conditioning and refrigeration service work within the County, no prohibited conflict of interest would be created were he to perform work for the School District while you serve on the School Board. In the future, should your husband no longer be the only source of supply for air conditioning and refrigeration work within the County, the guidelines set out below in our response to your second question should be followed.

QUESTION 2:

Would a prohibited conflict of interest be created were you to serve as a member of a district school board if your husband's business, of which you are a partner, were to sell services or equipment to the school district by sealed bid?

As noted above, Section 112.313(3), Florida Statutes, would prohibit your business from selling to the School District in the absence of an exemption. Where a system of sealed, competitive bidding is utilized by a public agency, the following exemption would apply, 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), Florida Statutes (1981).]

Under this provision, you should abstain from participating in the determination of the bid specifications or the determination of the lowest or best bidder, and you should file a disclosure statement with the Clerk of the Circuit Court prior to or at the time of the submission of the bid. We have promulgated Form 3A, "Statement of Interests in Competitive Bid for Public Business," for use in making the disclosure required by this provision.

Accordingly, so long as the provisions of Section 112.313(12)(b) are complied with, no prohibited conflict of interest would be created were you to serve on the School Board if your husband were to do business with the School District by sealed, competitive bid.

QUESTION 3:

Would a prohibited conflict of interest be created were you to serve as a member of a district school board where your son is employed by the school board to work in the district's maintenance department?

In a telephone conversation with our staff, you advised that the School Board has employed your son on an annual basis to work in the District's Maintenance Department. There is no provision of the Code of Ethics for Public Officers and Employees which would prohibit you from serving on the School Board while your son is employed by the School Board.