CEO 88-71 -- October 19, 1988

CONFLICT OF INTEREST

STATE REPRESENTATIVE CONTRACTING WITH DEPARTMENT

OF CORRECTIONS TO PROVIDE PHARMACEUTICAL SERVICES

To: The Honorable Everett A. Kelly, State Representative, District 46 (Tavares)

SUMMARY:

No prohibited conflict of interest would be created were a State Representative to contract with the Department of Corrections to provide pharmaceutical services. A State Representative is not deemed to be doing business with his agency in violation of Section 112.313(3), Florida Statutes, when he contracts with state agencies other than the Legislature. Also, such a contract for services is not in violation of Section 112.313(7)(a), Florida Statutes, as Section 112.313(7)(a)2 provides an exemption where an officer's agency is a legislative body which regulates strictly through the enactment of laws.

QUESTION:

Would a prohibited conflict of interest be created were you, a State Representative, to contract with the Department of Corrections to provide pharmaceutical services?

Your question is answered in the negative.

In your letter of inquiry you advise that you serve as a member of the Florida House of Representatives and as Chairman of the House Committee on Corrections, Probation, and Parole. You also advise that you are considering contracting with the Department of Corrections to provide pharmaceutical services.

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 (1987).]

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 (1987).]

When the agency referred to is a legislative body and the regulatory power over the business entity resides in another agency, or when the regulatory power which the legislative body exercises over the business entity or agency is strictly through the enactment of laws or ordinances then employment or a contractual relationship with such business entity by a public officer or employee of a legislative body shall not be prohibited by this subsection or be deemed a conflict. [Section 112.313(7)(a)2, Florida Statutes (1987).]

Section 112.313(3) prohibits a public officer from acting in a private capacity to sell services to his own agency. This provision would not apply in this instance as your agency is the Florida Legislature. Section 112.313(7)(a) prohibits a public officer from having a contractual relationship with an agency which is subject to the regulation of his agency. However, Section 112.313(7)(a)2 exempts conflicts under this provision for members of legislative bodies where the regulatory power is exercised strictly through the enactment of laws.

Accordingly we find that no prohibited conflict of interest would be created were you to contract with the Department of Corrections to provide pharmaceutical services.