CEO 91-36 -- July 19, 1991

CONFLICT OF INTEREST

EMPLOYEES OF CLERK OF CIRCUIT COURT AND RELATIVES OF

EMPLOYEES PURCHASING PROPERTY AT JUDICIAL AND TAX SALES

To: Charles D. Bailey, Jr., Attorney for Sarasota County Clerk of Circuit Court (Sarasota)

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were an employee of a clerk of the circuit court with duties relating to the acquisition or disposition of property sold at judicial sales or tax sales to purchase the property. Such a purchase would create a continuing or frequently recurring conflict between the employee's private interests and the performance of his public duties and would impede the full and faithful discharge of his public duties. An employee of the clerk having no duties regarding a particular type of sale would not be prohibited from making purchases at such sales.

A relative of an employee with duties regarding sales would not be prohibited from purchasing. However, were the purchases by the relative to be used as a device to acquire property for an employee of the clerk who is prohibited from making purchases directly, a prohibited conflict of interest would be created. CEO 83-24, CEO 83-26, and CEO 87-28 are referenced.

QUESTION 1:

Would a prohibited conflict of interest be created were an employee of a clerk of the circuit court to purchase property sold by the clerk at a judicial sale or a tax sale?

Your question is answered in the affirmative, subject to the exception discussed below.

In your letter of inquiry, telephone conversation between you and our staff, telephone conversation between the Clerk's Director of Court Services and Director of Records Management and our staff, and other written materials transmitted to our staff, you advisethat you are seeking this opinion on behalf of Karen E. Rushing, Clerk of the Circuit Court for Sarasota County. You further advise that the Clerk conducts judicial sales (addressed in Section 45.031, Florida Statutes) and tax sales (addressed in Chapter 197, Florida Statutes, and Chapter 12D-13, Florida Administrative Code). The judicial sales involve real and personal property, while the tax sales involve only real property. The Clerk's employees do not have physical custody of the personal property. Duties regarding judicial sales are the ongoing responsibility of several deputy clerks who rotate responsibility for the actual handling of sales on the courthouse steps on a day-to-day basis. There is currently only one deputy clerk with tax sale responsibility; however, two others are being trained for those duties.

The duties of the Clerk's office relative to judicial sales involve receiving the court's orders or final judgments directing sale of the property, publishing notices of sales, receiving deposits from successful high bidders at sales, further advertising sales if successful bidders do not make final payment within the prescribed period, applying funds toward judgments underlying sales, filing and serving certificates of sale, filing and service of certificates of title, recording certificates of title, disbursing proceeds of sales, filing and serving reports of disbursements, filing objections to reports of disbursements, filing objections to amounts of bids, processing requests for redemption of property prior to sales, conducting actual sales (which includes reading a statement describing the sale and making notations of bids), and handling the results and information from actual sales for use in carrying out the other duties described above. Only employees of the civil law division of the Clerk's office carry out the duties relating to judicial sales. Employees of other divisions can enter work areas of the civil law division not open to the public, but they must make a request of a civil law division employee in order to handle papers and materials located in such areas.

The duties of the Clerk's office relative to tax sales are similar to those for judicial sales. Those duties include providing notice of a sale and any surplus proceeds of the sale, by certified mail, to all persons with a record interest in the property. Since court files underlying judicial sales and tax records underlying tax sales are public records, such records would not constitute sources of information not available to the general public which might be used for the personal gain or benefit of employees of the Clerk's office. The Clerk's Director of Court Services and Director of Records Management could think of no information in the Clerk's office relating to judicial sales or tax sales which would not be available to the general public. Only designated employees of the recording division of the Clerk's office perform the duties relating to tax sales. Employees of other divisions have access to work areas of the recording division not open to the public, but employees of other divisions and employees of the recording division with no tax sale duties must make a request of an employee with tax sale duties in order to handle papers and materials located in such areas.

Section 112.313(7)(a), Florida Statutes, provides in relevant part:

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.

This provision prohibits employees of the Clerk's office from having or holding a contractual relationship that will create a continuing or frequently recurring conflict between their private interests and the performance of their public duties or that would impede the full and faithful discharge of their public duties.

In CEO 83-24, we found that this provision prohibited county employees who were involved in the acquisition or disposition of surplus property from purchasing the property at a public sale. In that opinion, we were concerned with the county employee's potential to use information not available to the general public in making purchases. However, we also found that such employees would be placed in a position where regard for their private interests in purchasing the property could lead to disregard of their public duties in the acquisition and disposition process.

It is our view that the situation now before us, as far as it concerns employees of the Clerk's office who actually have duties regarding judicial or tax sales and employees who supervise those employees, is one in which there also would exist that tension between advancement of the employees' private interests in buying property and their public duties in handling the sale of the property. Those employees are responsible for performing public duties which, if not carried out properly, could, for example, subject property to sale which rightfully ought to have been redeemed pursuant to timely and appropriate action of the record owner, or which could result in a bid higher than an employee's bid going unnoted or being misplaced, with the employee then being the high bidder for the property. See also CEO 87-28, where we found that the purchase of impounded animals by a county animal impounding officer would impede the full and faithful discharge of the employee's public duties.

However, we do not find that purchases at judicial or tax sales by employees of the Clerk's office who perform no duties regarding such sales create such a conflict or impediment. See CEO 83-26, Question 7, where we found that no prohibited conflict of interest would be created were a trooper of the Florida Highway Patrol not involved in the purchase or disposition of used Highway Patrol vehicles to purchase a used Highway Patrol vehicle from the Department of Highway Safety and Motor Vehicles.

Accordingly, we find that a prohibited conflict of interest would exist were an employee of a clerk of the circuit court who has duties regarding judicial sales or tax sales, or his superiors, to purchase property at the types of sales to which his duties relate.

QUESTION 2:

Would a prohibited conflict of interest be created were a relative of an employee of a circuit court clerk to purchase property at such sales, where the relative is not a public officer or employee with duties regarding acquisition or disposition of property sold at judicial sales or tax sales?

Your question is answered in the negative, subject to the conditions discussed below.

Since the relative is not a public officer or employee with duties regarding the sale of such property which could be disregarded in favor of his private interests in purchasing the property, no prohibited conflict of interest would be created by his mere purchase. However, should an agreement or course of dealing exist or develop whereby the relative passes such property to an employee prohibited from purchasing under our response to Question 1, or should the relative's purchase be only a device to acquire the property for the employee, a prohibited conflict of interest would be created under Section 112.313(7)(a).

Further, we strongly caution employees of the clerk against engaging in any action or behavior in their official capacity which would aid their relatives in the purchase of such property, including, but not limited to, moving their relatives to the front of a group of bidders, ignoring other bidders once their relatives have made a bid, or noting bids from their relatives on items that were not actually subjected to public bidding. Such action or behavior might very well constitute a prohibited misuse of position under Section 112.313(6), Florida Statutes, which provides:

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.

Your question is answered accordingly.