CEO 83-26 -- June 16, 1983
CONFLICT OF INTEREST
DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES EMPLOYEES PURCHASING USED HIGHWAY PATROL VEHICLES FROM DEPARTMENT OR FROM DEALERS DOING BUSINESS WITH DEPARTMENT
To: (Name withheld at the person's request.)
SUMMARY:
A prohibited conflict of interest would be created were the Purchasing Director, Automotive Equipment Maintenance Representative, or the Deputy Chief of Highway Patrol Field Operations of the Department of Highway Safety and Motor Vehicles to purchase a used Highway Patrol vehicle from the Department or from a motor vehicle dealer who has acquired the vehicle from the Department, or were they to purchase any vehicle from a motor vehicle dealer who either buys vehicles from or sells vehicles to the Department. Because of these individuals' involvement in the purchase and disposition of Highway Patrol vehicles, such purchases by them would violate Section 112.313(7), Florida Statutes. In contrast, a Trooper with the Highway Patrol having no responsibility in the acquisition or disposition of Highway Patrol vehicles would not be prohibited from purchasing a used Highway Patrol vehicle or any other vehicle from a dealer doing business with the Department. CEO 83-24 is referenced.
QUESTION 1:
Would a prohibited conflict of interest be created were the Purchasing Director of the Department of Highway Safety and Motor Vehicles to purchase a used Highway Patrol vehicle from the Department or from a motor vehicle dealer who has acquired the vehicle from the Department?
This question is answered in the affirmative.
In your letter of inquiry you advise that Ms. Merelyn Grubbs, the Purchasing Director of the Department of Highway Safety and Motor Vehicles, is responsible for developing bid specifications for purchases to be made by the Department, for directing bid advertisements and bid openings, for making bid award recommendations and awarding contracts, and for making the final decision on controversial bids. With respect to Florida Highway Patrol (FHP) vehicles, purchases usually are made in the fall and spring of each year. The Automotive Equipment Maintenance Representative of the Department and the Deputy Inspector of the Central Region prepare a list of FHP vehicles that are to be traded. This list is forwarded to the Purchasing Director, who is responsible for sending out formal bid invitations for both the purchase of fleet vehicles and the bidding/trading of used FHP vehicles. The Purchasing Director's Office sets a bid opening date for these transactions, and formal invitations to bid are sent to appropriate automobile dealers and others listed on a mailing list. The bids are returned sealed and are opened by the Purchasing Director on the bid opening date.
The determination as to whether a vehicle is sold on bid or is traded depends on which method will bring the higher amount of money for the vehicle. You advise that the dealer who is awarded the fleet contract is not always the dealer awarded the sale of the used FHP vehicles. The decision as to whom a vehicle will be sold or traded is made strictly based upon the bid. Finally, you advise that during fiscal year 1981-82 approximately 503 vehicles were traded in.
In particular, you question whether the Purchasing Director may purchase used FHP vehicles acquired from the Department either by purchase or as a trade-in for new vehicles. In addition, you question whether the Purchasing Director may purchase used FHP vehicles directly from the Department by bid or otherwise, and whether the Purchasing Director may act as an intermediary for friends, relatives, and others for the purchase of used FHP vehicles.
The Code of Ethics for Public Officers and Employees provides in relevant part:
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 public employee from having any contractual relationship that will present a frequently recurring conflict of interest, or that would impede the full and faithful discharge of the employee's public duties. In a recent opinion, CEO 83-24, we advised that although generally the purchase of surplus county property by a county employee would not result in a prohibited conflict of interest, a prohibited conflict would be created where an employee who has been involved in the disposition process purchases such property. Our concern, as expressed in that opinion, was that such employees would be in a position to use information not available to members of the general public for their benefit and that they would be placed in a position where regard for their private interests in purchasing the surplus property could tend to lead to disregard of their public duties in those processes.
Here, the Purchasing Director clearly is involved in the disposition of used FHP vehicles from the development of bid specifications through the award of contracts. Because of this involvement in the purchasing and disposition process, we also are of the opinion that the Purchasing Director should not purchase a used FHP vehicle from a motor vehicle dealer who has acquired the vehicle from the Department. In that instance also, the Purchasing Director would have a contractual relationship with a business entity which is doing business with her agency, in violation of Section 112.313(7), above.
Accordingly, we find that a prohibited conflict of interest would be created were the subject Purchasing Director to purchase a used FHP vehicle from the Department or from a motor vehicle dealer who has acquired the vehicle from the Department.
QUESTION 2:
Would a prohibited conflict of interest be created were the Purchasing Director of the Department of Highway Safety and Motor Vehicles to purchase a vehicle, other than one formerly used by the Department, from a motor vehicle dealer who either buys vehicles from or sells vehicles to the Department?
This question is answered in the affirmative.
Section 112.313(7)(a), quoted above, prohibits a public employee from having a contractual relationship with a business entity which is doing business with his or her agency. A motor vehicle dealer engaged in buying vehicles from the Department or selling vehicles to the Department is "doing business with" the Department. Because of the Purchasing Director's involvement in the business being done between the Department and the dealer, we are of the opinion that the prohibition of Section 112.313(7)(a) would apply here.
Accordingly, we find that a prohibited conflict of interest would be created were the Purchasing Director of the Department to purchase a motor vehicle from a dealer who is buying vehicles from or selling vehicles to the Department.
QUESTION 3:
Would a prohibited conflict of interest be created were an Automotive Equipment Maintenance Representative of the Department of Highway Safety and Motor Vehicles to purchase a used Highway Patrol vehicle from the Department or from a motor vehicle dealer who has acquired the vehicle from the Department?
This question is answered in the affirmative.
In your letter of inquiry you advise that Mr. J. W. "Bill" Ingram is employed by the Department as an Automotive Equipment Maintenance Representative. In that capacity, he maintains all records of maintenance performed on FHP vehicles, prepares the lists of vehicles to be traded, maintains a repairs file for each vehicle, and reviews all requests for purchase orders for repairs before repairs are made.
In our opinion, the Automotive Equipment Maintenance Representative is in substantially the same position as the Purchasing Director of the Department with respect to the acquisition and disposition of FHP vehicles. He, too, is in a position to use information not available to members of the general public, and could be placed in a position where regard for his private interests in purchasing a used vehicle could tend to lead to disregard of his public duties in the disposition process. Accordingly, we find that a prohibited conflict of interest would be created were the subject Automotive Equipment Maintenance Representative to purchase a used FHP vehicle from the Department or from a dealer who has acquired the vehicle from the Department.
QUESTION 4:
Would a prohibited conflict of interest be created were an Automotive Equipment Maintenance Representative of the Department of Highway Safety and Motor Vehicles to purchase a vehicle, other than one formerly used by the Department, from a motor vehicle dealer which either buys vehicles from or sells vehicles to the Department?
With respect to this question, we are also of the opinion that the Maintenance Representative is in a position similar to that of the Purchasing Director. In addition to his involvement in the disposition of used FHP vehicles, the Maintenance Representative is responsible for negotiating with automobile dealers problems such as warranty repairs, locating parts, and parts not giving the service expected of them, according to his position description. Because of this involvement with the automobile dealers who are doing business with the Department, we are of the opinion that a prohibited conflict of interest would be created under Section 112.313(7)(a) if the subject Automotive Equipment Maintenance Representative were to purchase a vehicle from a dealer who is buying vehicles from or selling vehicles to the Department.
QUESTION 5:
Would a prohibited conflict of interest be created were the Deputy Chief of Field Operations of the Central Region of the Florida Highway Patrol to purchase a used Highway Patrol vehicle from the Department or from a motor vehicle dealer who has acquired the vehicle from the Department?
This question is answered in the affirmative.
In your letter of inquiry you advise that Major B. K. Burkett is the Deputy Chief of Field Operations and Commander of the Central Region of the Florida Highway Patrol. In that position, he commands three traffic troops, may be called upon to serve as a uniformed member of the Patrol, and works with the Automotive Equipment Maintenance Representative in preparing the list of FHP vehicles to be traded. You further advise that he is the one individual in the Highway Patrol who is most responsible for buying and selling vehicles.
Based upon the Deputy Chief's role in the purchase and sale of FHP vehicles, we are of the opinion that the rationale of our responses to Questions 1 and 3, above, applies equally to his situation. Accordingly, we find that a prohibited conflict of interest would be created were the subject Deputy Chief of Field Operations to purchase a used FHP vehicle from the Department or from a motor vehicle dealer who has acquired the vehicle from the Department.
QUESTION 6:
Would a prohibited conflict of interest be created were the Deputy Chief of Field Operations of the Central Region of the Florida Highway Patrol to purchase a vehicle, other than one formerly used by the Highway Patrol, from a motor vehicle dealer who either buys vehicles from or sells vehicles to the Department?
As the subject Deputy Chief plays a substantial role in the acquisition and disposition of FHP vehicles, we are of the opinion that his situation does not differ from those reviewed in Questions 2 and 4, above. Accordingly, we find that a prohibited conflict of interest would be created were the subject Deputy Chief to purchase a vehicle from a dealer who either buys vehicles from or sells vehicles to the Department of Highway Safety and Motor Vehicles.
QUESTION 7:
Would a prohibited conflict of interest be created were a Trooper with the Florida Highway Patrol to purchase a used Highway Patrol vehicle from the Department of Highway Safety and Motor Vehicles or from a motor vehicle dealer who has acquired the vehicle from the Department?
This question is answered in the negative.
In your letter of inquiry you advise that Trooper R. T. Weber with the Florida Highway Patrol has no connection with the acquisition or disposition of FHP vehicles. As a Trooper, he is responsible for patrolling the highways and enforcing State laws governing them, for assisting motorists, and for investigating accidents and preparing accident reports. You question whether the subject Trooper may purchase used FHP vehicles for himself or others from motor vehicle dealers who have acquired them from the Department or may purchase such vehicles directly from the Department by bid or otherwise. In addition, you question whether he may purchase a used FHP vehicle from a dealer at a price of $100 above the dealer cost if the dealer has a uniform policy of allowing any sworn Highway Patrol officer to purchase such a vehicle at that price.
We begin our analysis with Section 112.313(7)(a), quoted above. We are of the opinion that the subject Trooper would be permitted to purchase used FHP vehicles from the Department if a procedure is used under which his position would give him no advantage over any member of the general public. As he is not involved in the purchase or disposition of vehicles for the Department, his situation falls within the general rule expressed in CEO 83-24.
Regarding the purchase of a used vehicle from a dealer, we are of the opinion that the subject Trooper is in a substantially different position than the other individuals mentioned in this opinion. Although the dealer would be considered to be "doing business with" the Department, we must read the prohibition of Section 112.313(7)(a) in conjunction with the following provision of the Code of Ethics:
Construction. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, Florida Statutes (1981).]
As the Trooper is not involved in buying or selling vehicles for the Department, it does not appear that his purchase of a used FHP vehicle from a dealer would interfere with the full and faithful discharge of his public duties. In addition, although motor vehicle dealers are licensed by the Department under Section 320.27, Florida Statutes, you have advised that the Trooper does not play any role in that regulatory process, which is administered by the Department's Division of Motor Vehicles.
In our view, the fact that a dealer may have a known, uniform policy of allowing any sworn Highway Patrol officer to purchase a used FHP vehicle at $100 above cost would not change our response to this question. The Code of Ethics provides:
UNAUTHORIZED COMPENSATION. -- No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity. [Section 112.313(4), Florida Statutes (1981).]
Based upon the facts you have presented, it does not appear that such an offer made to sworn officers of the Highway Patrol who are not involved in the purchase or disposition of used FHP vehicles would violate this provision. Without having any authority in that process, such officers could not be influenced in any action in which they were expected to participate regarding the dealer making the offer. Similarly, in CEO 77-114 we advised that this provision would not prohibit city employees from receiving free checking accounts offered by a bank to all City employees.
Accordingly, we find that no prohibited conflict of interest would be created were the subject Highway Patrol Trooper to purchase a used Highway Patrol vehicle from the Department or from a dealer who has acquired the vehicle from the Department.
QUESTION 8:
Would a prohibited conflict of interest be created were a Trooper with the Highway Patrol to purchase a vehicle, other than one formerly used by the Department, from a motor vehicle dealer who either buys vehicles from or sells vehicles to the Department?
This question is answered in the negative.
If the vehicle is purchased upon terms available to members of the general public, we are of the opinion that our rationale to your seventh question, above, also would apply here. Although the dealer would be "doing business with" the Department if buying vehicles from or selling to the Department, Section 112.316 would apply to exempt any prohibited conflict of interest, because the Trooper's duties do not involve the purchase or disposition of motor vehicles.
Similarly, if the vehicle were purchased upon special, favorable terms available only to sworn members of the Highway Patrol, the rationale to your seventh question and to CEO 77-114 would apply equally here. You also have inquired concerning the possibility that the vehicle may be purchased upon special, favorable terms available only to the Trooper. If such were the case, we would prefer to examine the situation more closely in order to assure ourselves that there was no misuse of public position and no official responsibilities which could be influenced by such terms. However, under the circumstances you have presented, it does not appear that such an agreement would be prohibited by the Code of Ethics, because the Trooper's responsibilities do not involve motor vehicle dealers or the purchase or sale of motor vehicles for the Department.
Accordingly, we find that no prohibited conflict of interest would be created were the subject Trooper to purchase a vehicle, other than one formerly used by the Department, from a dealer who either buys vehicles from or sells vehicles to the Department.