CEO 83-58 -- July 28, 1983

CONFLICT OF INTEREST

COUNTY COMMISSIONER PROVIDING ACCOUNTING SERVICES FOR COUNTY SUPERVISOR OF ELECTIONS

To: Mr. Robert Bruce Snow, County Attorney, Hernando County

SUMMARY:

No prohibited conflict of interest exists where a county commissioner, prior to qualifying for that office, entered into an oral contract with the county supervisor of elections to perform accounting services for the supervisor. Although Section 112.313(3), Florida Statutes, prohibits a county commissioner from acting in a private capacity to sell any services to the county or any agency thereof, Section 112.313(3)(b) exempts contracts entered into prior to qualification for elective office.

QUESTION:

Does a prohibited conflict of interest exist where a county commissioner, prior to qualifying for that office, entered into an oral contract with the county supervisor of elections to perform accounting services for the supervisor of elections?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. Henry D. Ledbetter is a member of the Hernando County Board of County Commissioners, having qualified for that office in July of 1982 and having been elected to that office in November of 1982. You also advise that he is a public accountant and in that capacity entered into an oral contract with the County Supervisor of Elections on October 1, 1981 to provide accounting services for the Supervisor. He has continuously provided these services since that time, you advise, and is paid on a monthly basis.

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 (1981).]

This provision prohibits a county commissioner from acting in a private capacity to sell any services to the county (the political subdivision which he serves as an officer) or any agency thereof.

We are of the opinion that the office of a county supervisor of elections is an "agency," because that term is defined to include "any . . . county . . . government entity . . . ." Section 112.312(2), Florida Statutes. In addition, we are of the view that the Supervisor's Office is an agency of the County. Article VIII, Section 1(a), Florida Constitution, provides that counties are political subdivisions of the State, and Section 1(d) of that Article provides that the Supervisor of Elections is an officer of the county.

However, we note that the contract between the subject Commissioner and the Supervisor of Elections was entered into before he qualified as a candidate for the County Commission. Therefore, we find that the "grandfather clause" of Section 112.313(3)(b) applies here. Although the contract between the Commissioner and the Supervisor of Elections is an oral one, the statute does not distinguish an oral contract from a written contract; the "grandfather clause" merely applies to "contracts."

Accordingly, we find that no prohibited conflict of interest exists by virtue of the subject County Commissioner's contract to provide accounting services for the County Supervisor of Elections under the circumstances you have presented.