CEO 85-66 -- September 3, 1985

CONFLICT OF INTEREST

CITY COUNCIL MEMBER SELLING GOODS TO CITY AND REPAIRING CITY EQUIPMENT

To: Mr. Tom Bailey, Member, Williston City Council

SUMMARY:

A city council member is prohibited by Section 112.313(3), Florida Statutes, from selling any goods or services to the city. However, Section 112.313(12)(b) and (e), Florida Statutes, creates exemptions to this prohibition where the business is awarded under a system of sealed, competitive bidding or where the business entity involved is the only source of supply within the political subdivision.

QUESTION:

Would a prohibited conflict of interest be created were you, a city council member, to sell supplies and equipment to various city departments and to provide repairs for city vehicles and equipment?

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

In your letter of inquiry you advise that you have been elected to serve on the City Council of the City of Williston. You also advise that prior to your election you have sold supplies and equipment to various departments of the City, including the Fire Department and Police Department, and that you have repaired City vehicles and other equipment. You state that presently your business is the only one in the City which can sell certain fire, police, and other items and make certain types of repairs. The items you anticipate selling to the City usually do not require a department head to seek bids. On larger items, the department head would be required to submit bids to the City Council for approval.

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.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1983).]

In addition, no person shall be held in violation of subsection (3) or subsection (7) if:

(b) 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 supervisor of elections of the county in which the agency has its principal office, if he is an officer or employee of a political subdivision, disclosing his interest, or the interest of his spouse or child, and the nature of the intended business. [Section 112.313(12)(b), Florida Statutes (1983).]

(e) 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 his 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 (1983).]

Section 112.313(3) prohibits a public officer from acting in a private capacity to sell any goods or services to his agency. Therefore, as a general rule you are prohibited from selling any goods or services to the City.

However, where the business is to be awarded under a system of sealed, competitive bidding, you may sell goods or services to the City provided that you do not participate in determining the bid specifications or determining the lowest or best bidder, and provided that you make no effort to use your influence to persuade City personnel to enter into a contract other than by merely submitting a bid. In addition, you would be required to file Commission on Ethics Form 3A, Interest in Competitive Bid for Public Business, with the supervisor of elections prior to or at the time you submit a bid.

In addition to the competitive bidding exemption of Section 112.313(12)(b), Section 112.313(12)(e) would permit you to sell to the City if your business is the only source of supply within the City for the particular supplies, equipment, or services to be provided to the City. Please note that in order to comply with this exemption you must file Commission on Ethics Form 4A, Disclosure of Business Transaction, Relationship or Interest, with the City Council prior to the particular transaction.

Finally, in the event that any transaction you may have with the City comes before the City Council for a vote, Section 112.3143(3), Florida Statutes (Supp. 1984), would require you to abstain from voting, to announce at the meeting the nature of your interest in the matter, and to file Commission on Ethics Form 4, Voting Conflict of Interest, with the person responsible for recording the minutes of the meeting.

Accordingly, we find that the Code of Ethics for Public Officers and Employees would prohibit you from selling any goods or services to the City unless you comply with the terms of the exemptions discussed above.