CEO 82-76 -- September 20, 1982

CONFLICT OF INTEREST

SCHOOL DISTRICT EMPLOYEE OWNING STORE SELLING TO DISTRICT

To: Mr. Harry Blair, Attorney for Lee County School Board

SUMMARY:

No prohibited conflict of interest would be created were a school board to purchase musical instruments from a store owned by a secretary in the central office of the school board and her husband, who is not an employee of the school district. Based upon the responsibilities of the secretary, Section 112.316, Florida Statutes, would except this situation from the general rule that an employee of a political subdivision may not sell any goods to that subdivision.

QUESTION:

Would a prohibited conflict of interest be created were a school board to purchase musical instruments from a store owned by a secretary in the central office of the school board and her husband?

Your question is answered in the negative.

In a telephone conversation with our staff, you advised that the Lee County District School Board proposes to contract to purchase musical instruments from a store owned by a secretary in the School Board's administrative building and her husband. You also advised that, under this contract, the store would sell to schools throughout the District. Neither the secretary nor her husband has input into the purchasing decisions; the School Board makes such decisions by means of a bidding system. Furthermore, neither the secretary nor her husband holds any supervisory position within the School District.

Section 112.313(3), Florida Statutes, prohibits a public employee from selling any goods to his own agency while acting in a private capacity. In previous opinions we have advised that one who owns a material interest in a business acts in a private capacity to sell when that business sells. See CEO's 75-196, 76-172, and 78-22. However, this prohibition is to be read in light of Section 112.316, Florida Statutes, which states:

Construction. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, Florida Statutes (1981).]

This provision mandates that the Code of Ethics not be construed to prohibit a public officer or employee from engaging in private pursuits which do not interfere with the full and faithful discharge of his public duties. Thus, the question is whether the secretary in question can sell to schools within that District without interfering with the performance of her public duties.

You have informed us that neither the secretary nor her husband have input into the District School Board's purchasing decisions. In our view, the sale of musical instruments by the secretary's store under these circumstances would not interfere with the full and faithful discharge of her public duties. Similarly, in CEO 76-157 we advised that an individual employed by a city as a toll attendant could contract with the city to provide trash and garbage pickup for city parks. See also CEO 80-24, in which we advised that a switchboard operator for a city could be employed by a business entity doing business with the city.

Accordingly, we find no prohibited conflict of interest where a secretary for a District School Board and her husband own a store which sells musical instruments to the school board employing her.