CEO 87-9 -- January 29, 1987

CONFLICT OF INTEREST

HISTORIC PRESERVATION ADVISORY COUNCIL MEMBER

PRESIDENT OF CORPORATION SUBCONTRACTING WITH FIRM

WHICH IS CONTRACTING TO PROVIDE SERVICES TO

COUNTY RECEIVING HISTORICAL PRESERVATION GRANT

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

SUMMARY:

No prohibited conflict of interest exists where a member of the Historical Preservation Advisory Council is the president of a corporation which subcontracts with a firm which is contracting to provide services to a county receiving a historical preservation grant. Section 112.313(3), Florida Statutes, would not be violated as the council member's corporation would not be selling services to his agency. Further, Section 112.313(7)(a), Florida Statutes, would not apply as the corporation is not doing business with the council member's agency.

QUESTION:

Would a prohibited conflict of interest be created where you, a member of the Historic Preservation Advisory Council, are the president of a corporation which subcontracts with a firm which is contracting to provide services to a county receiving a historical preservation grant?

Your question is answered in the negative.

In your letter of inquiry you advise that you are a member of the Historic Preservation Advisory Council, a body that was created in order to enhance public participation and involvement in the preservation and protection of the State's historic and archaeological sites and properties. According to Section 267.0612, Florida Statutes (Supp. 1986), the Council is responsible for providing advice and other assistance to the Division of Historical Resources, Department of State. The Council's duties include the evaluation of proposals for awards of historic preservation grants- in-aid administered by the Division. You advise that the Division recently awarded a preservation grant to Marion County for the purpose of conducting a survey of possible historic and archaeological sites located in that county. The county has contracted with a particular firm to do the survey. That firm intends to do the historical and architectural portions of the survey and to subcontract the archaeological portion of the survey to a second corporation. In a telephone conversation with our staff, you advised that you serve as president of this corporation and own approximately 50 percent of its stock. You also are one of several employees.

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 prevents a public officer from acting in a private capacity to sell any service to his agency. It is not applicable to the situation you describe, as your corporation would be selling services to the firm which has contracted with the county rather than to the Division of Historical Resources, which is your agency.

The Code of Ethics also provides:

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 (1985).]

This provision prohibits a public officer from being employed by a business entity which is doing business with his agency. Under the circumstances presented, it appears that your corporation would not be doing business with the Division of Historical Resources. Rather, the corporation is contracting with the entity that is contractually obligated to perform the work for Marion County.

Accordingly, no prohibited conflict of interest exists where you, a member of the Historic Preservation Advisory Council, are the president of a corporation which subcontracts with a firm which is contracting to provide services to a county receiving a historical preservation grant.