CEO 83-24 -- April 21, 1983

CONFLICT OF INTEREST

COUNTY EMPLOYEES BIDDING TO PURCHASE SURPLUS COUNTY PROPERTY AT AUCTION

To: Ms. Mary Greenwood, Manatee County Attorney

SUMMARY:

Generally, no prohibited conflict of interest would be created were a county employee to purchase surplus property from the county at an advertised, public auction. CEO 76-145 is referenced. However, under the circumstances presented, a county employee who has been, or will be, involved in the acquisition or disposition of the surplus property would be prohibited from purchasing it; such a purchase would constitute a contractual relationship that would impede the full and faithful discharge of the employee's public duties, in violation of Section 112.313(7)(a), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created were a county employee to purchase surplus property from the county at an advertised, public auction?

In your letter of inquiry you advise that Manatee County is in the process of acquiring several lots and parcels of land in an area of the County that will be used as a floodway. The County plans to declare the structures on these lots surplus property and to dispose of them by a widely advertised public auction. The County Department of Materials and Services has requested proposals from auctioneers who are qualified to dispose of these structures by public auction. The County Commission has appointed a committee to review the proposals, to assist the Board in selecting an auctioneer, and to propose terms for the contract with the auctioneer.

After advertising the request for proposals for an auctioneer, the Director of Materials and Services resigned and the Director of the Personnel Department, ...., has been appointed acting Director of Materials and Services. You advise that he did not participate in prior determinations related to the acquisition or disposition of the structures. Nor is he serving on the advisory committee which will be involved in selecting the auctioneer. The committee has been and will be reporting directly to the County Commission, which will make all final determinations relating to the sale.

Prior to this individual's appointment as acting Director he had made plans to bid on one of the structures. You advise that his information about the contemplated sale came from newspaper articles and television reports, rather than from inside information.

In addition, you advise that ...., a member of the County Attorney's staff, also wishes to purchase property to be sold at the auction. As a secretary in the County Attorney's Office, she has handled most of the paperwork related to the acquisition of the property in question. We are advised that while she has had advance knowledge of several matters and access to information such as purchase prices and appraised values, most of this information has become a part of the public record.

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).]

Generally, we are of the opinion that the purchase of surplus County property by a County employee would not result in a prohibited conflict of interest. See CEO 76-145, in which we advised that a city employee could participate in a public auction held by the city for the sale of surplus tangible property, where we perceived "no special privilege or advantage enjoyed by the employee by virtue of his position with the municipality." However, where a public employee has been involved in the disposition of surplus property by advising of the proper procedures to be followed, we have found a prohibited conflict of interest. See CEO 76-188.

We are of the opinion that any County employee who has been, or will be, involved in the disposition of this surplus property would be prohibited from purchasing it. In addition, because the property at issue here apparently was acquired with the intent of disposing of it, we are of the opinion that employees involved in the acquisition of the property similarly would be prohibited from purchasing it.

In our view, the purchase of such property by an employee involved in its acquisition or disposition would constitute a contractual relationship that would impede the full and faithful discharge of his public duties. In particular, we are concerned with the possibility that such employees are in a position to use information not available to members of the general public for their benefit. We note that most, but not all, of the information available to the County Attorney staff member has become part of the public record. In addition, it appears that employees involved in the acquisition or disposition process 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.

Accordingly, we are of the opinion that the County Attorney staff member is prohibited from purchasing the surplus property because of her involvement in the acquisition process. However, it does not appear from the information you have provided that the Acting Director of Materials and Services has been, or will be, involved in the acquisition or disposition process. Therefore, we do not find that he will be prohibited from bidding upon, and purchasing, any of this surplus property.