CEO 83-28 -- June 16, 1983

CONFLICT OF INTEREST

COUNTY COMMISSIONER'S SON PROVIDING REPAIR SERVICES TO COUNTY

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

SUMMARY:

No prohibited conflict of interest would be created were the son of a county commissioner to provide motor vehicle generator and starter repair services to the county, where the county road superintendent is authorized to purchase such repair service but the county commission must approve the invoice or bill for payment. Section 112.313(3) would not be violated because the road superintendent would be acting as purchasing agent and the county commissioner would not be acting in his official capacity to purchase services.

QUESTION:

Would a prohibited conflict of interest be created were your son to provide motor vehicle generator and starter repair services to the county which you serve as a county commissioner, where the county road superintendent is authorized to purchase such repair service but the county commission must approve the invoice or bill for payment?

Your question is answered in the negative.

In your letter of inquiry you advise that you are a member of the Hamilton County Commission. You also advise that your son owns and operates a motor vehicle generator and starter repair service in the County and that you have no interest whatsoever in that business.

In addition, you advise that the County Commission has established by written rule or policy that the Superintendent of the County Road Department is authorized to make purchases for the Road Department in amounts up to $2,000 without any prior authorization or approval of the Board. The invoice or bill for such purchases made by the Road Superintendent is presented to the Board for approval for payment. However, neither the Board nor any member of the Board has any discretion, control, or power with regard to which business such purchases are made from, a matter which is the sole authority of the Road Superintendent.

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 prohibits a County Commissioner from acting in an official capacity to directly or indirectly purchase any goods or services for his agency from a business entity of which his child is the owner. However, we are of the opinion that under the circumstances you have presented you would not be acting in an official capacity to make purchases if those purchases had been authorized by the Road Superintendent and the County Commission merely was required to approve for payment the invoice or bill for services already rendered.

In our view, the Road Superintendent would be acting as purchasing agent by determining which business would do the required work and by ordering the work to be done. Similarly, in In re T. Wayne Miller, Jr., Complaint No. 80-45, 3 FALR 1405-A (1981), we found that the director of a mosquito district who was authorized to make purchases on the district's behalf was a purchasing agent for the district, even though the district's governing body was required to approve the purchases subsequently in order to authorize payment. Here, we note in particular that the County Commission does not make the decision of which business to purchase from or whether work in amounts of up to $2,000 would be done. As the purchase of goods or services would already have been accomplished before the matter came to the Commission for approval of payment, we do not believe that a County Commissioner should be considered to be "acting in his official capacity" to purchase for his own agency.

As a further note, however, we would caution you to avoid even the appearance that you might be using your position to benefit your son. In this respect, you may wish to consider refraining from any contact with the Road Superintendent regarding generator or starter repair service for County vehicles.

Accordingly, we find that no prohibited conflict of interest would be created were the County Road Superintendent to authorize generator or starter repair services in amounts less than $2,000 from your son's business.