CEO 87-30 -- April 23, 1987

CONFLICT OF INTEREST

UNIVERSITY EMPLOYEES' SPOUSES OWNING TRAVEL AGENCY

PROVIDING SERVICES TO UNIVERSITY PERSONNEL

To: (Name withheld at the person's request.)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(3), Florida Statutes, were university coaches' spouses to own material interests in a travel agency which makes travel arrangements for athletes and employees of the university traveling on official business, although the coaches would be prohibited from selecting their spouses' travel agency when officially traveling for the university. CEO's 86-80 and 85-71 are referenced.

QUESTION:

Would a prohibited conflict of interest be created under the Code of Ethics for Public Officers and Employees were the spouses of two university coaches to own material interests in a travel agency which makes travel arrangements for athletes and employees of the university traveling on official business?

Your question is answered in the negative, subject to the circumstances described below.

In your letter of inquiry you advise that the spouses of Florida State University head football coach, ...., and an assistant football coach, ...., intend to purchase interests in a travel agency. Each spouse will own more than five percent of the total assets or capital stock of the travel agency. Neither coach will own any interest in the business, and neither will be an officer, partner or director of the business.

This travel agency could provide services to the University, including the University's Intercollegiate Athletic Department. You question whether a prohibited conflict of interest would be created under the Code of Ethics for Public Officers and Employees were the travel agency to sell services to any of the departments, divisions, or officers of the University, and, if such a conflict exists, whether any of the exemptions contained in Section 112.313(12), Florida Statutes, would apply.

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 (1985).]

This provision prohibits a public employee acting in his official capacity as a purchasing agent from purchasing services for his own agency from any business entity in which his spouse has a material interest. "Material interest" is defined by Section 112.312(12), Florida Statutes, as

direct or indirect ownership of more than 5 percent of the total assets or capital stock of any business entity. For purposes of this act, indirect ownership does not include ownership by a spouse or minor child.

Thus, both coaches would be prohibited from acting in an official capacity as purchasing agents to purchase services for their agency, the University, from the travel agency. See Section 112.312(2), Florida Statutes (1985), for the definition of "agency." The term "purchasing agent" is defined as follows:

>Purchasing agent= means a public officer or employee having the authority to commit the expenditure of public funds through a contract for, or the purchase of, any goods, services, or interest in real property for an agency, as opposed to the authority to request or requisition a contract or purchase by another person. [Section 112.312(16), Florida Statutes (1985).]

According to information received from the Intercollegiate Athletic Department, travel authorization requests are submitted for approval to the immediate supervisor of the person traveling. For example, the head coach approves the travel authorization request for assistant coaches and the other individuals whom he supervises. The Athletic Director must approve the travel authorization requests of the head coach. Once a travel authorization request is approved, the individual traveler is free to choose a travel agency when he makes his travel arrangements. Therefore, under Section 112.313(3), Florida Statutes, both coaches would be prohibited from selecting their spouses' travel agency when officially traveling for the University.

Please note that the Code of Ethics contains several exceptions to the prohibition of Section 112.313(3), Florida Statutes, including an exemption where:

The total amount of the subject transaction does not exceed $500. [Section 112.313(12)(f), Florida Statutes (1985).

This provision has been interpreted to exempt a single transaction in an amount not exceeding $500. See CEO 86-80.

We also would direct your attention to the following provision of the Code of Ethics:

MISUSE OF PUBLIC POSITION. -- No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes (1985).]

As in CEO 85-71, we would caution that any solicitation by the coaches of private business from University athletes and employees would constitute a violation of this provision.

Accordingly, we find that no prohibited conflict of interest exists where the spouses of University coaches own material interests in a travel agency which makes travel arrangements for athletes and employees of the University traveling on official business, so long as the coaches do not purchase services from the travel agency while acting as a purchasing agent in their official capacity.