CEO 85-85 -- November 26, 1985

CONFLICT OF INTEREST

CITY PLANNING AND ZONING BOARD MEMBER CONTRACTING WITH CITY TO CLEAR LOTS

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

SUMMARY:

No prohibited conflict of interest exists where a member of a city planning and zoning board has been awarded a contract with the city by a system of sealed, competitive bidding to clear lots located within the city. Although the terms of the competitive bidding exemption contained in Section 112.313(12)(b), Florida Statutes, were not met, the board was not responsible for the approval of, or the giving of advice or recommendations as to, the purchase of services. Therefore the rationale of CEO 81-66 and similar opinions is applicable.

QUESTION:

Does a prohibited conflict of interest exist where you, a member of a city planning and zoning board, have been awarded a contract with the city by a system of sealed, competitive bidding to clear lots located within the city?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry you advise that you serve on the Planning and Zoning Board of the City of Riviera Beach. You also advise that recently your landscaping company was awarded a contract by the City to clear lots located within the City. The contract was awarded under a system of sealed, competitive bidding to the lowest or best bidder.

You also advise that the Planning and Zoning Board has no influence or authority over the lot clearing process and that the Board in no way attempted to use its influence to persuade the City Council or any City personnel to enter into the contract with your company. You have been advised that before submitting your bid you should have filed Commission on Ethics Form 3A with the Supervisor of Elections in your county. Although you have filed that form, you did not do so at the time of the submission of your bid because you were not aware of this requirement.

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 (1983).]

However, the Code of Ethics also provides an exception to this prohibition where:

(b) 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 (1983).]

It is apparent that because you did not file Commission on Ethics Form 3A, Interest in Competitive Bid for Public Business, prior to or at the time of the submission of your bid, you have not fully complied with the requirements of the competitive bid exemption.

Nevertheless, in previous opinions we have advised that a member of a subordinate board of a political subdivision may sell goods or services to agencies of that subdivision other than the agency of which he is a member, so long as the subordinate board is not responsible in any manner for the approval of, or the giving of advice or recommendations as to, the purchase of goods or services. See CEO 81-66 and the opinions cited therein. The rationale of CEO 81-66 clearly is applicable here.

Accordingly, we find that no prohibited conflict of interest exists by virtue of your service on the Planning and Zoning Board and your contract with the City to clear lots. Although we find the rationale of CEO 81-66 and similar opinions to be applicable here, we commend your undertaking to comply with the terms of the competitive bid exemption, as the disclosure requirement of that exemption informs the public of the nature of the business which you are doing with the City.