CEO 92-25 -- June 5, 1992

CONFLICT OF INTEREST

CITY COUNCILMAN FLORIST SELLING TO CITY

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

SUMMARY:

Transactions not exceeding $500, occurring October 1, 1991 through December 31, 1991, between a city councilman's business and the city were not prohibited by Sections 112.313(7)(a) and 112.313(3), Florida Statutes, due to the exemption enacted in Chapter 91-85, Laws of Florida, concerning aggregate transactions not exceeding $500 in a calendar year. CEO 90-57 is referenced.

QUESTION:

Were sales from your business to the city which you serve as a councilman occurring between October 1, 1991 and December 31, 1991, which did not exceed $500 in the aggregate, prohibited by the Code of Ethics for Public Officers and Employees where in excess of $500 in sales from your business to the city occurred in 1991 prior to October 1?

Under the facts recited herein, your question is answered in the negative.

By your letter of inquiry and other written documents supplied by you to our staff, we are advised that you are a member of the Plantation City Council, having served in that capacity since 1975. We are advised further that you and your wife own an incorporated florist business located in the City and that the business has been selling flowers and other items to the City since 1955. You advise that your business transacted $544.50 in sales to the City between October 1, 1991 and December 31, 1991 which, in actuality, amounted to $490 due to your refund to the City of $55.50. Your opinion request requires us to assume that sales from your business to the City reached or exceeded $500 in the aggregate in 1991, prior to October 1. You advise that you desire to know whether Section 112.313(12)(f), Florida Statutes, effective October 1, 1991, constituted an exemption for $500 in aggregate sales between October 1, 1991 and December 1, 1991, regardless of the amount ofsales between your business and the City occurring in 1991, prior to October 1.

The Code of Ethics for Public Officers and Employees provided 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 . . .[Section 112.313(3), Florida Statutes.]

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.]

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

(f) The total amount of the transactions in the aggregate between the business entity and the agency does not exceed $500 per calendar year. [Section 112.313(12)(f), Florida Statutes.]

Prior to the enactment of Chapter 91-85, Laws of Florida, which took effect in relevant part October 1, 1991, Section 112.313(12)(f) provided an exemption where:

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

Sections 112.313(3) and 112.313(7)(a), respectively, prohibited sales from your business to the City and prohibited your contractual relationship with your business (an incorporated entity), absent the effect of an applicable exemption such as Section 112.313(12)(f). We interpreted the former language of Section 112.313(12)(f) to exempt from the prohibitions of Sections 112.313(3) and 112.313(7)(a) transactions between public officers and employees where the amount of each individual transaction did not exceed $500, rather than applying an interpretation that aggregated the amount of transactions within a calendar year or a series of transactions. See, for example, CEO 90-57. However, the transactions you seek advice regarding occurred after the effective date of the current language of Section 112.313(12)(f).

Inasmuch as the current language of Section 112.313(12)(f) was enacted during the calendar year 1991, and inasmuch as its effective date fell in the last calendar quarter of 1991, we find that your transactions with the City which occurred in that narrow space of time between October 1, 1991 and December 31, 1991 are entitled to an exemption not exceeding $500, regardless of the amount of sales transacted between your business and the City in 1991, prior to October 1. Our finding recognizes that you could have tailored your conduct to fall within the new language of the exemption only for the portion of the calendar year 1991 remaining after the effective date of the new language.

Accordingly, under the facts and circumstances recited in this opinion, we find that sales from your florist business to the City, not exceeding $500, which occurred between October 1, 1991 and December 31, 1991 were not prohibited by the Code of Ethics.