CEO 83-23 -- April 21, 1983

CONFLICT OF INTEREST

COUNTY COMMISSIONER OFFICER AND SHAREHOLDER IN CORPORATION WHICH OWNS BUILDING LEASED TO COUNTY

To: (Name withheld at the persons' request.)

SUMMARY:

A prohibited conflict of interest would be created under Sections 112.313(3) and (7)(a), Florida Statutes, were a corporation of which a county commissioner is an officer and shareholder to lease a portion of a building which it owns to the county, unless one of the exemptions of Section 112.313(12), Florida Statutes, applies. Under the circumstances presented, it appears that the exemption for sealed, competitive bidding might apply, but that the exemptions for emergency contracts and for sole sources of supply would not be applicable.

QUESTION:

Would a prohibited conflict of interest be created were a corporation of which you are an officer and shareholder to lease a portion of a building which it owns to the county which you serve as county commissioner?

Your question is answered in the affirmative, subject to the exceptions noted below.

In your letter of inquiry you advise that you are a member of the Monroe County Board of County Commissioners. You also advise that several months ago the County Commission unanimously directed the head of Civil Defense to locate a suitable site for an emergency operations center which would sustain itself in a major hurricane storm. The emergency operations center would be used in cases of civil disaster, hurricane, or nuclear disaster.

At the present time the County Civil Defense Department, which was requested to identify any and all possibilities which would meet its criteria for an emergency operations center, has found only two suitable sites. One of the two locations is the County courthouse, which may not have sufficient space to fulfill the civil defense needs. The other site is a building which is owned by a corporation of which you are Vice President and a 25 percent shareholder. In addition, you advise that your wife also owns 25 percent of the stock in this corporation.

The Code of Ethics for Public Officers and Employees, in Section 112.313(3), Florida Statutes, prohibits a public officer from acting in his official capacity to rent or lease any realty for his agency from a business entity of which he or his spouse is an officer or more than a five percent shareholder. In addition, Section 112.313(7)(a), Florida Statutes, prohibits a public officer from having any employment or contractual relationship with a business entity which is doing business with his agency. These provisions of the Code of Ethics would prohibit your corporation from leasing a portion of its building to the County.

However, the Code of Ethics also contains several exemptions to these prohibitions, including the following three:

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.]

An emergency purchase or contract which would otherwise violate a provision of subsection (3) or subsection (7) must be made in order to protect the health, safety, or welfare of the citizens of the state or any political subdivision thereof. [Section 112.313(12)(d), Florida Statutes.]

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 (Supp. 1982).]

The first exemption listed above would apply if the County were to use a sealed, competitive bidding procedure in leasing a facility for use as an emergency operations center. Under this exemption, you would be required to abstain from the determination of the bid specifications and from the determination of the lowest or best bidder. In addition, you and your wife in no way could attempt to use your influence to persuade the County to enter into the contract, other than by merely submitting the bid. Finally, you would be required to file the appropriate disclosure form (Commission on Ethics Form 3A) with the Clerk of the Circuit Court prior to or at the time of the submission of the bid.

The second exemption quoted above would apply if the lease were an emergency contract which must be made in order to protect the health, safety, or welfare of the citizens of the County. From the circumstances you have presented, we cannot conclude that this exemption would apply. As the courthouse site apparently remains a possibility, it does not appear that the lease of your building "must be made" in order to protect the County. In addition, we feel that we would have to know the efforts made by the County to identify suitable locations for an emergency operations center; we have not been provided with this information, which in our view would bear on the question of whether an emergency exists.

The third exemption quoted above would apply if the building owned by your corporation were the only suitable location for an emergency operations center within the County and if then you make the appropriate disclosure (on Commission on Ethics Form 4A) to the County Commission prior to the lease of the property. At the present time, we cannot conclude that this exemption would apply, because of the apparent possibility that facilities may be available in the courthouse. However, if it is determined that the courthouse does not provide sufficient space, and that the building owned by your corporation is the only facility suitable for such a center, this exemption would apply.

Accordingly, we find that a prohibited conflict of interest would be created were your corporation to lease a portion of a building owned by it to the County, unless one of the exemptions were to apply as described above.