CEO 91-7 -- January 30, 1991

CONFLICT OF INTEREST; VOTING CONFLICT

SCHOOL BOARD MEMBER OWNER OF COMPANY SUBCONTRACTING ON SCHOOL DISTRICT CONSTRUCTION PROJECTS

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

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(3) or Section 112.313(7), Florida Statutes, were a school board member who owns a controlling interest in a construction subcontracting corporation to participate in board debate, or consult with board staff during their project planning phase, about a building or remodeling project on which his corporation might or will submit a bid to the general contractor. CEO 88-43 is referenced. However, the board member should be careful to avoid misusing his public position or information gained in that capacity for his personal benefit, as would be prohibited by Sections 112.313(6) and 112.313(8), Florida Statutes. The board member would not be required by Section 112.3143(3), Florida Statutes, to abstain from voting on the approval of a board building or remodeling project, because such a decision would not inure to his special gain. Once the project reaches the point where a general contractor will be selected, however, the board member should abstain from voting if his corporation will or might submit a bid to subcontract on the project.

QUESTION 1:

Would a prohibited conflict of interest be created were a school board member, who owns a controlling interest in a construction subcontracting corporation, to participate in school board debate, or consult with school board staff during their project planning phase, about a school district building or remodeling project on which the corporation might or will submit a bid to the general contractor?

This question is answered in the negative, subject to the limitations noted below.

Through your letter of inquiry and a telephone conversation with our staff, we are advised that Mr. Richard Ripp, a newly-elected member of the Lee County School Board, owns a controlling interest in a corporation which for some time has provided substantial construction subcontracting work on School District projects as a dry wall contractor. You further advise that the member desires to know whether he may participate in School Board debate about future projects on which the corporation might or will submit a bid to the general contractor, and to what extent he may consult with School Board staff regarding project specifications during the time the staff is planning a project on which the corporation might or will so bid.

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.]

This provision prohibits the Board member from acting in his official capacity to purchase goods or services for the School District from any business entity in which he has a material interest. It also prohibits the member from selling any goods or services to the School District in his private capacity.

In CEO 88-43, we concluded that this provision would not prohibit a water management district board member's corporation from subcontracting with a general contractor to provide paving for a district headquarters construction project, noting that in five previous opinions we had found that Section 112.313(3) would not prohibit an official from subcontracting to provide goods or services to a contractor doing business with his agency. Similarly, here, since the general contractor and not the Board will be purchasing the subcontracting services, and since those services will be sold to the general contractor and not to the School Board, Section 112.313(3) would not be violated.

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.]

This provision prohibits the member from having certain employment or contractual relationships while he serves on the School Board.

Under the rationale expressed in CEO 88-43 and CEO 82-54, however, this provision would not be violated if the Board member's corporation were to subcontract on a School District project because the corporation in which he owns a controlling interest, and not the member personally, would have the contractual relationship with the general contractor doing business with the School Board.

Finally, Sections 112.313(6) and 112.313(8), Florida Statutes, provide as follows:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity.

It is clear that these provisions do not altogether prohibit the subject School Board member from consulting with Board staff or engaging in School Board debate about building or remodeling projects on which his corporation may submit a bid to the general contractor. However, we do suggest that he take pains to avoid even the appearance that his public position or information gained in his public capacity are being used for his private benefit.

Accordingly, subject to the limitations noted above, we find that the Code of Ethics for Public Officers and Employees does not prohibit the subject School Board member from consulting with Board staff and engaging in School Board debate about School District building or remodeling projects on which his corporation might or will submit a bid to the general contractor.

QUESTION 2:

Is the school board member required to abstain from voting on the acceptance or rejection of a proposed school district building or remodeling project on which his corporation might or will submit a bid to the general contractor?

This question is answered in the negative.

The Code of Ethics provides in relevant part:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one-acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes.]

This provision prohibits the School Board member from voting on any measure that would inure either to his special private gain or to the special gain of a principal by whom he is retained.

In previous opinions, we have found no "special" gain to exist when the circumstances were such that any gain or loss to the public official, or one by whom he was retained, was too remote or speculative. See, for example, CEO 87-47, in which we found that a State Representative who owned a corporation that built and financed portable classroom buildings did not have a voting conflict of interest in voting on appropriations to agencies which might use those funds to purchase portable classrooms. Here, the determination of whether to build or remodel cannot be said to inure to anyone's special gain. Once the project reaches the point where a general contractor will be selected, however, the Board member should abstain from voting if his corporation will or might submit a bid to subcontract on the project. See CEO 88-43.

Accordingly, we find that the subject School Board member is not required to abstain from voting on the acceptance or rejection of a proposed building or remodeling project on which his corporation might or will submit a bid to the general contractor.