CEO 88-16 -- March 16, 1988

CONFLICT OF INTEREST

CITY CLERK'S SPOUSE OWNER OF BUSINESS

SELLING CLOTHING ALTERATION SERVICES TO THE CITY

To: Mr. Steve Odem, City Clerk, Palmetto

SUMMARY:

A city clerk is prohibited by Section 112.313(3), Florida Statutes, from acting in his official capacity as a purchasing agent to purchase services from his spouse's business. However, Section 112.313(12)(f), Florida Statutes, provides an exemption to this prohibition where the total amount of the subject transaction does not exceed $500.

QUESTION:

Would a prohibited conflict of interest be created were the business of the spouse of a city clerk to sell clothing alteration services to the city?

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

In your letter of inquiry you advise that you are the City Clerk for the City of Palmetto. In your position you generally review all billings for payment by the City and sign the checks for such payment. You further advise that the Chief of Police for the City has expressed a desire to utilize the services of your wife's business. The Police Department maintains the uniforms of its officers and the suits of its plain-clothed officers. In the past the cleaning and alteration of this clothing has been performed by a local dry cleaning establishment. However, the Police Chief has compared the cost of these alterations with the prices which your wife charges and has determined that significant savings would be realized by the City if this work were to be done by your wife. You have no ownership interest in your wife's business and do not serve as an officer, partner, director, or proprietor of that business entity.

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 (1987).]

This provision prohibits a public employee from acting in his official capacity as a purchasing agent to purchase services for his agency from any business entity which is owned by his spouse. Section 112.312(16), Florida Statutes, defines a "purchasing agent" as a public employee having the authority to commit the expenditure of public funds through a contract for, or the purchase of, any goods or services.

In a telephone conversation with our staff you advised that as City Clerk you oversee the City Purchasing, Finance, and Billing Divisions. While you usually do not sign purchase orders, you advised that you would have the authority to do so in an emergency situation. You further advised that you once signed a purchase order when the Purchasing Director was on vacation. Typically, a City department will initiate a requisition which is sent to the Purchasing Department. The Purchasing Department then issues a purchase order. After the requesting department receives the subject goods or services, they forward the applicable paperwork to the Finance Department for the processing of payment. The paperwork and check then is relayed to you or the Mayor for final review and signature. In the case of the current arrangement with the dry cleaning establishment, an agreement is in place which allows the police officers to take their clothing in for service. Each month the dry cleaner provides the Police Department with a summary sheet of charges and the various receipts. These documents then are approved by the Police Department and forwarded to the Finance Department. You envision that the same sort of arrangement would exist with your wife's business.

In our view it is unclear whether you would be acting as a purchasing agent under the described circumstances. However, the Code contains an exemption where:

The total amount of the subject transaction does not exceed $500. [Section 112.313(12)(f), Florida Statutes (1987).]

Therefore, so long as any transaction between your wife's business and the City does not exceed $500, it is clear that your wife may provide alteration services at City expense.

Please be advised that the Code also provides:

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 (1987).]

We would caution you that any attempt by you to use your official position to benefit your spouse's business could be violative of this provision.

Your question is answered accordingly.