CEO 83-77 -- October 27, 1983

CONFLICT OF INTEREST; FINANCIAL DISCLOSURE

COUNTY COMMISSIONER'S SPOUSE BENEFICIARY OF TRUST PURCHASING BOND ISSUED BY COUNTY COMMISSION

To: Mr. J. E. Tileston, Assistant County Attorney, Lee County

SUMMARY:

No prohibited conflict of interest exists where a trust of which a County Commissioner's wife is a beneficiary owns revenue bonds issued by the County Commission. Here, the County Commission is not purchasing any goods or services from the trust. As the interests of a public official's spouse need not be disclosed, the trust's ownership would not appear on the full and public financial disclosure statement required of the Commissioner by Article II, Section 8(a), Florida Constitution.

QUESTION 1:

Does a prohibited conflict of interest exist where a trustee has purchased revenue bonds issued by a County Commission for a trust of which a County Commissioner's wife is a beneficiary?

This question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that Mr. Porter J. Goss is a member of the Lee County Board of County Commissioners, which has issued tax- free revenue bonds for its airport. The bonds are insured by bond insurance and carry a fixed rate of return. In addition, you advise that a trustee purchased some of these bonds in behalf of a trust of which the subject Commissioner's wife is a beneficiary.

The Code of Ethics for Public Officers and Employees provides in 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.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1981).]

This provision prohibits a County Commissioner from acting in his official capacity to purchase any goods or services from a business entity of which his spouse owns a material interest, and prohibits a Commissioner from acting in a private capacity to sell any goods or services to the County. However, under the circumstances presented, it is clear that the County Commission has not acted to purchase any goods or services from the trust; nor has the Commissioner sold any goods or services to the County.

The Code of Ethics also provides:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), Florida Statutes (1981).]

This provision prohibits a County Commissioner from having certain types of employment and contractual relationships. We find this provision also to be inapplicable, as the circumstances presented do not indicate that the Commissioner has any sort of employment or contractual relationship which might give rise to a prohibited conflict of interest.

Accordingly, we find that no prohibited conflict of interest exists where a trustee for a trust of which the subject Commissioner's wife is a beneficiary has purchased bonds issued by the County. You also have inquired whether there would be a conflict of interest if the Commissioner, instead of his wife, had purchased the bonds through a trustee. Please be advised that it has been the policy of the Commission on Ethics since the issuance of CEO 75-166 (Question 5) not to render an advisory opinion concerning hypothetical questions, in order to maintain the status of our opinions as binding and judicially reviewable under Sections 112.322 and 112.3241, Florida Statutes.

QUESTION 2:

Is any type of disclosure to be made by a County Commissioner where the Commissioner's wife is a beneficiary of a trust which owns bonds issued by the County?

As a constitutional officer, the County Commissioner is required to file full and public financial disclosure under Article II, Section 8(a) of the Florida Constitution (Commission on Ethics Form 6). However, we previously have advised that the financial interests of a public officer's spouse need not be disclosed on this form. See CEO 77-158, CEO 78-37 and CEO 82-30.

Accordingly, we are of the opinion that the fact that a County Commissioner's wife is the beneficiary of a trust which owns bonds issued by the County Commission is not required to be disclosed under Article II, Section 8(a) of the Florida Constitution.