CEO 88-79 -- December 1, 1988

CONFLICT OF INTEREST

DEPARTMENT OF CORRECTIONS DENTIST

SELLING GLOVES TO AGENCY WHICH EMPLOYS HIM

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

SUMMARY:

A prohibited conflict of interest would be created under Sections 112.313(3) and (7), Florida Statutes, if dentists who are employed by the Department of Corrections were to sell gloves to their own agency, unless one of the exceptions in Section 112.313(12), Florida Statutes, applies. No prohibited conflict of interest would be created if the dentists sold such gloves to the Department of Health and Rehabilitative Services. CEO's 77-83, 81- 78, 83-10, and 83-33 are referenced.

QUESTION 1:

Would a prohibited conflict of interest be created were you, dentists employed by the Department of Corrections, to sell examination gloves to the agency by which you are employed?

Your question is answered in the affirmative, subject to the conditions and exemptions discussed below.

In your letter of inquiry you state that you are Senior Dentists employed by the Department of Corrections. You both work in state prisons, and your responsibilities are to supervise and hire dental staff at the institutions, to monitor the quality and quantity of dental care, to perform general dentistry, and to request needed supplies from the institutions' business departments. You further advise that you do not have any purchasing responsibilities on behalf of the Department or institutions, but that you are responsible for submitting a purchase request to request needed supplies.

You also import and sell nonsterile, latex examination gloves. You would like to know if you can sell these gloves to the Department of Corrections and to the Department of Health and Rehabilitative Services.

The Department of Corrections plans and administers its programs of correctional services through specified regions. Each region has an Office of Management and Budget, which has the administrative support function of purchasing. There is also a central Office of Management and Budget in charge of all department-wide purchasing. This office is also in charge of monitoring procedures for administrative support services in each region. See Section 20.315, Florida Statutes. We have also been informed by a phone call to the Department that some purchases may be made by an institution itself.

"Agency" is defined in Section 112.312(2), Florida Statutes, as follows:

‘Agency’ means any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority or political subdivision of this state therein; or any public school, community college or state university.

In CEO 77-83, we further defined "agency" as the lowest departmental unit within which the employee's or officer's influence might reasonably be considered to extend. From the information provided to us, it does not appear that your influence is likely to extend beyond the region in which the institution employing you is located, therefore, we consider your "agency" to be that region.

Section 112.313(3), Florida Statutes, provides:

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) expressly prohibits an employee of an agency, while acting in a private capacity, from selling goods to the agency by which he is employed. Therefore, this section would prohibit you from selling gloves to the region in which your institution is located. See CEO 83-10 and CEO 83-33.

Section 112.313(7)(a), Florida Statutes, states:

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.

The first part of this section prohibits you from having a contractual relationship with any business entity which is doing business with the agency which employs you. Having determined that your agency is the region in which your institution is located, Section 112.313(7)(a) would also prohibit you from selling gloves to that region or any institution located therein.

The second part of Section 112.313(7)(a) prohibits you from having an employment or contractual relationship which creates a "continuing or frequently recurring conflict" between your public duties and private interests. Although you are prohibited from selling gloves in your region, we have not been provided with any information which would indicate such a conflict would be created if you were to sell gloves to regions within the Department of Corrections other than your own, or to institutions located within those other regions.

Certain exemptions are provided by Section 112.313(12), Florida Statutes, to the prohibitions described above. Section 112.313(12) states in relevant part:

(12) EXEMPTION . . . In addition, no person shall be held in violation of subsection (3) or subsection (7) if:

(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.

(d) An emergency purchase or contract which would otherwise violate a provision of subsection (3) or subsection (7) must be made in order to protect the health, safety, or welfare of the citizens of the state or any political subdivision thereof.

(f) The total amount of the subject transaction does not exceed $500.

If one of these exemptions applies to your situation, the Code of Ethics would not prohibit you from selling gloves to your agency. For example, if a contract for selling this type of glove is awarded to you by a sealed, competitive bidding process, and you comply with applicable disclosure requirements, you may sell without violating Sections 112.313(3) and (7)(a). We suggest that you comply with this exemption if the central office of management and budget were to purchase gloves for the entire Department through competitive bidding.

Accordingly, we are of the opinion that Sections 112.313(3) and (7)(a), Florida Statutes, prohibit you from selling gloves to the region within the Department of Corrections in which your institution is located, unless one of the exemptions in Section 112.313(12), Florida Statutes, applies.

QUESTION 2:

Would a prohibited conflict of interest be created were you, dentists employed by the Department of Corrections, to sell examination gloves to the Department of Health and Rehabilitative Services?

Your question is answered in the negative.

From the information you have provided to us, it appears that you are employed by the Department of Corrections and not by the Department of Health and Rehabilitative Services. Section 112.313(3) prohibits an employee from selling goods to his own agency. Since you are not employed by HRS, this section would not apply. See CEO 81-78.

Section 112.313(7)(a) would prohibit your selling gloves to HRS if a "continuing" or "frequently recurring" conflict between your private interests and public duties were created thereby. Although it is possible that you may have some form of contact with HRS, it is apparent that you do not have any input as a public employee into whether HRS will purchase examination gloves or how many they will purchase. Therefore, it does not appear that such a conflict would be created.

Accordingly, we are of the opinion that you would not be prohibited by the Code of Ethics for Public Officers and Employees from selling gloves to the Department of Health and Rehabilitative Services.