CEO 91-12 -- March 7, 1991

CONFLICT OF INTEREST

CITY PURCHASING AGENT EMPLOYED AS SOFTBALL UMPIRE

AT SOFTBALL GAMES IN CITY

To: Arthur M. Wolff, Attorney (Fort Lauderdale)

SUMMARY:

No prohibited conflict of interest is created where an employee of a city's purchasing department is an independent contractor to organizations which officiate softball games, and a softball players' association in the city contracts with one of the umpires' associations to officiate softball games in the city. The Code of Ethics prohibits public employees from purchasing services from entities in which the employee is an officer, but here, the city is not procuring softball officiating services and the employee is not selling his services to the city. Section 112.313(3), Florida Statutes. While Section 112.313(7)(a), Florida Statutes, prohibits a public employee from having a contractual relationship with an entity which is subject to the regulation of, or doing business with, his agency, the various umpires' associations are neither subject to the regulation of the city nor doing business with the city. Nor does the employee have a contractual relationship which presents a frequently recurring conflict between his public and private duties.

QUESTION:

Does a prohibited conflict of interest exist where a city employee officiates softball games for a softball players' association in the city, which contracts with a softball umpires' association with whom the employee is an independent contractor and which plays its games on city-owned fields?

Your question is answered in the negative.

Through your letter of inquiry, we have been advised that Mr. Arthur Resnick is employed by the City of Coral Springs as aPurchasing Agent I in the City's Department of Procurement and Risk Services. As an employee of the City, he assists in the preparation of specifications used as the basis for bids, distributes bid invitations to vendors, receives and participates in the tabulation and analysis of bids to determine if all specifications are met, and makes determinations as to lowest and best bidder. Additionally, he reviews and processes departmental requisitions and secures prices for items, verifies funds availability, and maintains follow-through records. He has held this position for almost five years.

You advise that the City of Coral Springs does not procure the services of softball umpires for games played within the City. Rather, the Coral Springs Mens Softball Association, a private entity, selects the umpires' association they wish to use for officiating their softball games. The only contact between the city and the Coral Springs Mens Softball Association concerns the scheduling of games at City-owned softball fields.

You further advise that for the past seven years the employee has been a softball umpire in Broward and Palm Beach counties, employed as an independent contractor by a least five different softball officials' associations in these counties. Further, there are presently eight different umpires' associations in Broward County, and the employee is listed as an umpire with each of these associations. At one time the employee was an officer of the Tri-County Umpires Association, a voluntary, non-profit organization which employs umpires as independent contractors and pays them from $10.00 to $12.00 per game. He has since resigned as an officer of this organization. However, you further advise that he wishes to continue working as an umpire through other organizations as an independent contractor. As such, he has no direct contact with any cities or softball players' associations but, rather, works directly and only with the softball officials' association from whom he gets his game assignments and payment for games worked. You question whether a prohibited conflict of interest exists to prevent the employee from working as an independent contractor to officiate softball games in Coral Springs.

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 of 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 (1989).]

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 (1989).]

Section 112.313(3), Florida Statutes, prohibits a public employee acting in his official capacity from directly or indirectly purchasing services from a business entity in which the employee owns a material interest, or in which the employee is an officer, partner, director, or proprietor. As the City's Procurement and Risk Services Department in which the employee works is not purchasing officiating services from any softball umpires' association directly or indirectly, there is no conflict prohibited by the first sentence of this provision. Moreover, you relate that no other department within the City of Coral Springs has any involvement with the procurement of officiating services for softball games held within the City.

The second sentence of the above-cited provision prohibits an employee of the City from acting in his private capacity to sell any services to the City or any agency of the City. This provision does not apply to the present situation because the Coral Springs Mens Softball Association, which actually contracts with a softball umpires' association, is a private organization rather than an agency of the City. Also, the employee is providing officiating services as an independent contractor to the softball umpires' association, not directly to the softball players' association.

Concerning Section 112.313(7)(a), Florida Statutes, the first part of the statute prohibits a public employee from having an employment or contractual relationship with any business entity which is subject to the regulation of, or doing business with, the City of Coral Springs. There is nothing to suggest that Coral Springs regulates softball umpires' associations. Further, as already discussed, it is the Coral Springs Mens Softball Association which contracts with an association to provide officiating at softball games within the City. Although the Coral Springs Mens Softball Association does business with the City of Coral Springs through the scheduling and use of City-owned softball fields, the employee's contractual relationship is with the various associations of softball umpires, not the Coral Springs Mens Softball Association. Therefore, there is no violation of the first portion of Section 112.313(7)(a), Florida Statutes.

The remaining provision in Section 112.313(7)(a), Florida Statutes, prohibits an employee from having any employment or contractual relationship which creates a continuing or frequently recurring conflict between his private interests and his public duties. The information you have provided indicates that the employee has no contact with the players' association concerning the procurement of umpire services. Any bidding that occurs is by the presidents of the various umpires' associations. The employee has no way of knowing which umpires' association the Coral Springs Mens Softball Association has contracted with until the president of one of the umpires' associations contacts him to schedule him for a game. With so many umpires' associations operating in Broward County, the employee may end up working only one night a month in Coral Springs. As long as the employee officiates games during his off-duty hours and refrains from using the City's resources to obtain his game assignments or conduct other business concerning his officiating responsibilities, there is no prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes.

Accordingly, we find that there is no prohibited conflict of interest where the subject City employee contracts with softball umpires' associations to provide officiating services at softball games held within the City where the employee works, as well as elsewhere in the county.