CEO 82-89 -- December 10, 1982

CONFLICT OF INTEREST

EMPLOYEES AND RELATIVES OF EMPLOYEES OF DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES CONTRACTING TO PROVIDE JANITORIAL SERVICES FOR DRIVER LICENSES OFFICES

To: Mr. Robert A. Butterworth, Executive Director, Department of Highway Safety and Motor Vehicles

SUMMARY:

No prohibited conflict of interest exists where employees of the Division of Driver Licenses, Department of Highway Safety and Motor Vehicles, have contracted by sealed, competitive bids to provide janitorial services for driver license offices, or where a relative of such an employee is involved in providing services under the contract. Although the competitive bid exemption of Section 112.313(12)(b), Florida Statutes, would exempt the subject employees from the prohibitions of Sections 112.313(3) and (7), Florida Statutes, the exemption does not apply to Section 112.3185, Florida Statutes. However, the conduct of the subject employees does not violate Section 112.3185 since the contracts were entered into before the effective date of that statute and since the employees played no role in the procurement of janitorial services.

QUESTION:

Does a prohibited conflict of interest exist where an employee of the Division of Driver Licenses, Department of Highway Safety and Motor Vehicles, has contracted by sealed, competitive bid to provide janitorial services for a driver licenses office, or where a relative of such an employee is involved in providing services under the contract?

This question is answered in the negative.

Through your letter of inquiry we are advised that the Division of Driver Licenses currently accepts sealed bids through the Highway Safety and Motor Vehicles Purchasing Director for interested parties to contract to provide janitorial services within the Division's Driver Licenses offices around the State. Bids from the Division's employees who may be interested are accepted in accordance with the requirements of Section 112.313(12)(b), Florida Statutes, because it is felt that if an employee submits the low bid, the Division benefits by having one of its employees, trusted and known to it, with office keys and complete access to Division facilities. The Division has sensitive, accountable and valuable documents, as well as equipment in each office, the security of which may be affected adversely when the keys to the office are handed to an outside vendor who is unknown to the Division. In addition, it has been the experience of the Division that its employees are more dependable and take more of an interest in the appearance and cleanliness of the office in which they are assigned. Employees who submit bids and are awarded janitorial services contracts do not participate in drawing the specifications of the bids, letting the bids, or awarding the contract.

The Code of Ethics for Public Officers and Employees in Section 112.313(3), Florida Statutes, prohibits a public employee from acting in a private capacity to sell any goods or services to his agency. In addition, Section 112.313(7), Florida Statutes, prohibits a public employee from having any employment or contractual relationship with a business entity which is doing business with his agency. However, Section 112.313(12)(b), Florida Statutes, expressly provides an exemption to the prohibition of subsections (3) and (7) in situations where a system of sealed, competitive bidding is used in the award of a contract. As the Department has required compliance by its employees with the terms of Section 112.313(12)(b), we find that the contracts between the employees and the Department for janitorial services have not violated Sections 112.313(3) or (7), Florida Statutes.

You have inquired whether compliance with the exemption contained in Section 112.313(12)(b) by an employee would exempt that employee from the prohibition of Section 112.3185, Florida Statutes. Section 112.3185, Florida Statutes, as created by Chapter 82-196, Laws of Florida, creates several new restrictions on the employment or contractual relationships of state employees. There is no provision within Section 112.3185 which would indicate that the Legislature intended any of the exemptions of Section 112.313(12) to apply to the prohibitions of Section 112.3185. We also note that Section 112.313(12) only refers expressly to subsections (3) and (7) of Section 112.313. Therefore, we find that if conduct is permitted by an exemption within Section 112.313(12), it nevertheless is violative of the Code of Ethics if prohibited by Section 112.3185.

For this reason, we examine the applicability of Section 112.3185 to the situations you have referenced. Section 112.3185(3), Florida Statutes, provides:

No agency employee who participates through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in the procurement of contractual services shall become or be, while an agency employee, the employee of a person contracting with the agency by whom the employee is employed.

We find that this provision does not apply to the subject Department employees for two reasons. First, Section 112.3185 took effect on April 21, 1982. See Chapter 82-196, Section 13, Laws of Florida. Statutes are presumed to be prospective in application unless the Legislature manifests an intention to the contrary. Fleeman v. Case, 342 So. 2d 815 (Fla. 1976). We have found nothing in Chapter 82-196 which would indicate that the Legislature intended Section 112.3185 to apply to pre-existing contracts. As the Assistant General Counsel of the Department has informed our staff that all of the subject contracts were entered into in 1981 or earlier, we find that Section 112.3185 does not apply to those contracts. Secondly, we are advised that none of the subject employees played any role in the procurement of janitorial services; and, in addition, it does not appear that any of the Department employees have become the employee of a person contracting with the Department.

Finally, we are advised that the husband of one of these employees and the son of another employee are involved in providing janitorial services to the Department. Section 112.3185(7), Florida Statutes, provides:

No agency employee acting in his official capacity shall directly or indirectly procure contractual services for his own agency from any business entity of which a relative as defined in s. 116.111(1)(c) 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.

Similarly, we find that this provision does not apply both because the contracts were entered into prior to April 21, 1982, and because none of the employees played any role in procuring the contracts for the Department.

Accordingly, we find that no prohibited conflict of interest exists under the circumstances presented where an employee of the Division of Driver Licenses has contracted by sealed bid to provide janitorial services for a driver licenses office, or where a relative of such an employee is involved in providing janitorial services.