CEO 85-84 -- November 26, 1985

CONFLICT OF INTEREST

COUNTY COMMISSIONER BIDDING ON CONTRACT WITH COUNTY

To: Mr. Randy Sheive, Member, Osceola County Board of County Commissioners

SUMMARY:

No prohibited conflict of interest would be created were a county commissioner to sell meat to the county's criminal justice facility by competitive bid. Although Section 112.313(3), Florida Statutes, prohibits a county commissioner from selling any goods or services to the county or any agency thereof, Section 112.313(12)(b), Florida Statutes, exempts purchases awarded under a system of sealed, competitive bidding, so long as the official discloses his interest and otherwise complies with the requirements of the exemption.

QUESTION:

Would a prohibited conflict of interest be created were you, a county commissioner, to sell meat to the county's criminal justice facility by competitive bid?

Your question is answered in the negative, so long as the terms of the exemption noted below are met.

In your letter of inquiry you advise that you serve as a member of the Osceola County Board of County Commissioners and that you also own and operate a meat cutting and preparation business. You further advise that the County is constructing a new criminal justice facility which will have complete kitchen facilities for food preparation for the prisoners. You question whether you may bid on the contract for providing meat to the criminal justice facility and, if awarded the bid, serve the facility.

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).]

This provision prohibits a county commissioner from selling any goods or services to the County or any agency thereof. However, the Code of Ethics also contains several exemptions to the provision, including an exemption where:

(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 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 (1983).]

Therefore, so long as the County uses a system of sealed, competitive bidding to award the contract for providing meat to the criminal justice facility, you may bid on that contract if you comply with the three requirements of this exemption. Please note that the disclosure required by this provision should be made on Commission on Ethics Form 3A, Interest in Competitive Bid for Public Business. A copy of this form should be available from the Supervisor of Elections in your county.

Accordingly, we find that no prohibited conflict of interest would be created under the Code of Ethics were you to be awarded the contract to provide meat for the criminal justice facility through a system of sealed, competitive bidding, so long as you comply with the terms of the exemption contained in Section 112.313(12)(b), Florida Statutes.