CEO 87-67 -- September 16, 1987

CONFLICT OF INTEREST

COUNTY PURCHASING DIRECTOR'S SPOUSE

OWNER OF COMPANY DOING BUSINESS WITH COUNTY

To: Mr. Forrest Davis, Jr., Chairman, Gadsden County Board of County Commissioners

SUMMARY:

A county purchasing director is prohibited by Section 112.313(3), Florida Statutes, from acting in her official capacity to purchase goods or services from her spouse's business. However, Section 112.313(12)(b), Florida Statutes, creates an exemption to this prohibition where the business is awarded under a system of sealed, competitive bidding.

QUESTION:

Does a prohibited conflict of interest exist where a county purchasing director's spouse does business with the county when the business is awarded under a system of sealed, competitive bidding and sealed bids are processed through the purchasing director?

Your question is answered in the negative, subject to the restrictions noted below.

In your letter of inquiry and a telephone conversation with our staff you advise that Mrs. Jean Fletcher serves as the Purchasing Director for Gadsden County. Her husband is an equipment dealer, but she is not an owner, officer, or director of that company. The Purchasing Director abstains from voting on a matter if her spouse has submitted a sealed bid to the County. You question whether sealed bids for equipment may be processed through the Purchasing Director in the same manner as all other sealed bids.

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 public employee from acting in her official capacity as a purchasing agent to purchase goods or services from a business entity of which her spouse is an officer, director, or owner of more than a five percent interest. Therefore, as a general rule a purchasing director is prohibited from acting in her official capacity to purchase goods or services from her spouse's business.

The Code of Ethics also provides that no person shall be held in violation of Section 112.313(3), Florida Statutes, if:

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 (1985)]

This provision provides an exemption to the prohibition of Section 112.313(3) where the business is awarded under a system of sealed, competitive bidding. Section 112.313(12)(b), Florida Statutes, would permit such a transaction provided that the purchasing director did not participate in determining the bid specifications or determining the lowest or best bidder, and provided that she made no effort to use her influence to persuade County personnel to enter into the contract. In addition, she would be required to file CE Form 3A, Interest in Competitive Bid for Public Business, with the supervisor of elections prior to the time the bid is submitted.

According to the County's purchasing policies and procedures, the Purchasing Director specifies the time and place for bid openings of all advertised bids. You advise that these bids are received by the County Purchasing Department and locked in a cabinet by the Purchasing Director's secretary prior to the bid opening. A six member committee comprised of the Purchasing Director, a County Commissioner, the County Engineer, the Director of Services, the Clerk of Court, and the department director concerned publicly opens the bids. The six member committee records and reviews all bids and recommends the lowest responsible bidder meeting the specifications to the County Commission. The Purchasing Director is specifically responsible for supervising and preparing legal notices for sealed bids, placing all legal advertisements regarding sealed bids, obtaining sealed bids for all purchases over $1,500, and issuing purchase orders for purchases over $1,500.

In our view, the Purchasing Director is not prohibited from performing her duties unless they require her to determine bid specifications or to determine the lowest or best bidder. Therefore, sealed bids for equipment may be processed through the Purchasing Director in the same manner as all other sealed bids, as long as she complies with the requirements of the competitive bidding exemption with regard to business on which her spouse bids.

Your question is answered accordingly.