CEO 86-78 -- October 29, 1986

CONFLICT OF INTEREST

COUNTY COMMISSIONER OWNING FUNERAL HOMES PROVIDING INDIGENT BURIAL SERVICES FOR COUNTY

To: Mr. Cecil O. Akin, Member-Elect, Hendry County Board of Commissioners, Labelle

SUMMARY:

No prohibited conflict of interest would be created were a county commissioner, who prior to qualifying for that office entered into oral contracts with the county to provide indigent burial services and transportation of human bodies to the District Medical Examiner, to continue to provide such services upon taking office. Although Section 112.313(3), Florida Statutes, prohibits a county commissioner from acting in a private capacity to sell services to the county, Section 112.313(3)(b), Florida Statutes, exempts contracts entered into prior to qualification for elective office.

QUESTION:

Would a prohibited conflict of interest be created were you, a county commissioner-elect, who prior to qualifying for that office entered into oral contracts with the county to provide indigent burial services and transportation of human bodies to the District Medical Examiner, to continue to provide such services upon taking office?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry you advise that you have been elected to serve on the Hendry County Board of County Commissioners. You further advise that you own one-half interest in two funeral homes within the County. There is one other funeral home in the County. You state that all three funeral homes have furnished indigent burial services for a number of years and have been compensated by the Board of County Commissioners at a rate set by the Board. The Board is authorized to pay for these services pursuant to Section 245.07, Florida Statutes (1985). The particular funeral home to be employed is either chosen by the indigent family, the hospital, or the District Medical Examiner.

You also advise that your funeral homes also provide transportation of human bodies from Hendry County to the District Medical Examiner in Fort Myers. You explain that you began to provide this transportation because the County-operated ambulance no longer could make the trips to Fort Myers while providing adequate emergency medical care. This service is compensated by the Board of County Commissioners at a rate which was set by the Medical Examiner and approved by the Board. You question whether your funeral homes may continue to provide both this service and indigent burials after you assume your seat on the Board.

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.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1985).]

This provision prohibits a county commissioner from acting in a private capacity to sell any services to the county. In this case, however, we note that your contracts with the County were entered into before you qualified as a candidate for the County Commission. We previously have advised that the "grandfather clause" of Section 112.313(3)(b) applies in such circumstances. Although the subject contracts are oral, the statute does not distinguish an oral contract from a written contract. See CEO 83-58.

Please be advised that if any measure concerning the subject services comes before the County Commission in the future, you must abstain from voting and follow the disclosure requirements of the following provision:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one- acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes (1985).]

Furthermore, if the County Commission seeks to enter into new agreements with you, such contracts must fall within one of the following exemptions to Section 112.313(3), Florida Statutes (1985), in order to avoid the creation of a prohibited conflict of interest:

(a) Within a city or county the business is transacted under a rotation system whereby the business transactions are rotated among all qualified suppliers of the goods or services within the city or county.

(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.

(c) The purchase or sale is for legal advertising in a newspaper, for any utilities service, or for passage on a common carrier.

(d) An emergency purchase or contract which would otherwise violate a provision of subsection (3) or subsection (7) must be made in order to protect the health, safety, or welfare of the citizens of the state or any political subdivision thereof.

(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.

(f) The total amount of the subject transaction does not exceed $500.

(g) The fact that a county or municipal officer or member of a public board or body, including a district school officer or an officer of any district within a county, is a stockholder, officer, or director of a bank will not bar such bank from qualifying as a depository of funds coming under the jurisdiction of any such public board or body, provided it appears in the records of the agency that the governing body of the agency has determined that such officer or member of a public board or body has not favored such bank over other qualified banks. [Section 112.313(12), Florida Statutes (1985).]

Should this situation arise, you may want to request an advisory opinion to assess the specific application of the various exemptions to your case.

Accordingly, we find that no prohibited conflict of interest exists were you, a county commissioner-elect who prior to qualifying for that office entered into oral contracts with the County to provide indigent burial services and transportation of human bodies to the District Medical Examiner, to continue to provide such services upon taking office.