CEO 76-213 -- December 16, 1976

CONFLICT OF INTEREST

SPOUSE OF CITY COUNCILMAN DOING BUSINESS WITH INDEPENDENT CONTRACTORS WORKING FOR CITY

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(3), F. S. 1975 prohibits a public officer acting in his official capacity from directly or indirectly purchasing any services for his own agency from a business entity of which his spouse is an officer or in which his spouse owns a material interest. In a previous opinion, CEO 76-66, an officer's subcontracting on work done for his public agency was not found to constitute "indirectly purchasing." Accordingly, neither is that phrase deemed to be applicable where the spouse of a public officer owns a material interest in a business which subcontracts with the general contractor doing work for the city.

QUESTION:

Does a prohibited conflict of interest exist where my spouse owns a business which provides security guards for a general contractor which is constructing a building for the city of which I am a city councilman?

Your question is answered in the negative.

In your request you have stated that you are a City Councilman for the City of ____. You have also stated that your wife is an officer and half owner of a security agency which has contracted with a general contractor to provide security guards at the construction site of a building which is being built for the City of ____ by the general contractor. You are not an officer, director, or employee of, nor do you own any interest in, the security agency. In a telephone conversation with our staff, your wife stated that the city did not approve the subcontract between the general contractor and the security agency; nor did the city play any role in determining who was to provide security for the construction site.

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 . . . . [Section 112.313(3), F. S. 1975.]

This provision prohibits a public officer acting in his official capacity from directly or indirectly purchasing any services for his own agency from a business entity of which his spouse is an officer or in which his spouse owns a material interest. As a city councilman, you are a public officer of the City of ____, your agency, and you are considered to be acting in your official capacity whenever the city council acts as a body. See CEO 75-201.

The city council is not directly purchasing the services of the security agency of which your spouse is an officer and in which she owns a material interest, as the city does not have a contract with the security agency. Therefore, this provision applies to the instant case only if we construe "indirectly purchasing" to include a subcontract with a business entity owned by the spouse of a public officer. In CEO 76-66 we refused to find that an officer's subcontracting on work done for the officer's agency constituted an "indirect purchase." We see no reason to alter that interpretation here, where it is not the officer's firm but the firm of the officer's wife which has subcontracted with the general contractor. The second sentence of the above-cited provision similarly does not apply here, because this is not a direct sale of services to the city.

Accordingly, we find that there is no prohibited conflict of interest where a city councilman's spouse owns or is an officer of a security agency which provides guards for a general contractor at the site of a building being constructed for the city.