CEO 88-35 -- June 9, 1988

CONFLICT OF INTEREST

SPOUSE OF MAINTENANCE/CONSTRUCTION SUPERINTENDENT

OF DEPARTMENT OF CORRECTIONS INSTITUTION SELLING

SUPPLIES TO THE INSTITUTION

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

SUMMARY:

No prohibited conflict of interest would be created were a maintenance/construction superintendent of a Department of Corrections institution to initiate purchase requests which may be filled by his spouse's business. The superintendent would have no employment or contractual relationship with the building and hardware supply business owned entirely by his wife, thus making Section 112.313(7), Florida Statutes, inapplicable. As a "purchasing agent" must have the authority to sign purchase orders or contracts, the superintendent could not be characterized as acting in his official capacity as a "purchasing agent" for purposes of Section 112.313(3), Florida Statutes, as he only has the power to make requisitions.

QUESTION:

Would a prohibited conflict of interest be created were a correctional institution of the Department of Corrections to purchase building and hardware supplies from the spouse of the institution's maintenance/construction superintendent?

Your question is answered in the negative.

In your letter of inquiry and subsequent telephone conversation with our staff, you have advised that as Maintenance/Construction Superintendent of a correctional institution of the Department of Corrections, your duties include the preparation of purchase requisitions which are then turned over to the business department for approval. No one in the maintenance/construction department has anything to do with the purchasing of material -- that is the responsibility of the Institutional Purchasing Agent. Strict purchasing rules are followed; once you initiate the requisition from requests made by one of the supervisors in the Maintenance/Construction Department, the Purchasing Department calls all of the business competitors to get the lowest price. Any purchase of over $3,000 must be accomplished through a sealed bid process.

You also advise that your wife has purchased a building and hardware supply business, which is unincorporated. There are two other hardware stores and an additional building supply company in town. You state that your wife owns 100 percent of the business and that you neither work for nor are paid by her business.

The provisions of the Code of Ethics which must be examined under these circumstances are as follows:

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).]

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).]

Section 112.313(7)(a) would prohibit you from having an employment or contractual relationship with your wife's business when it is doing business with your agency, the correctional institution. This provision is not violated as you have no ownership interest in the company and are neither employed nor paid by the company.

The prohibition against doing business with one's agency would be applicable in your situation only were you to exercise the powers associated with being a purchasing agent. You have the authority to make purchase requisitions, but the power to sign purchase orders or contracts rests with the purchasing agent of the correctional institution. We previously have found that the power to make requisitions or requests is advisory in nature and persons with such authority are not deemed to be purchasing agents. See CEO 75-115, CEO 81-53, and CEO 82-63. See also the definition of "purchasing agent" in Section 112.312(16), Florida Statutes, which distinguishes between the authority to commit the expenditure of public funds and the authority to request or requisition a purchase by another person. Therefore, we do not find this provision to be violated.

Accordingly, we find that no prohibited conflict of interest would be created were the correctional institution to purchase building and hardware supplies from the business owned by your spouse while you serve as Maintenance/Construction Superintendent of the institution.