CEO 87-52 -- July 30, 1987

CONFLICT OF INTEREST

SCHOOL BOARD ASSISTANT SUPERINTENDENT'S SPOUSE

OWNER OF BUSINESS DOING BUSINESS WITH SCHOOL BOARD

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

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(3), Florida Statutes, were the computer supply company owned by the spouse of a school board assistant superintendent for finance to sell computer wares to the school board. The school board employee does not act in his official capacity as a purchasing agent to purchase such goods for his agency, and is not an officer, director, or owner of the computer supply company.

QUESTION:

Would a prohibited conflict of interest be created were a computer supply company owned by the spouse of a school board's assistant superintendent for finance to sell computer wares to the school board?

Your question is answered in the negative.

In your letter of inquiry you advise that you are the Assistant Superintendent of Finance for the Duval County School Board. You are responsible for the review of available funding of all capital outlay monies on purchase requisitions which exceed $1,000. From June 1985 to January 1987 you additionally were assigned the duty of reviewing all requisitions for computer equipment in order to determine whether the equipment met State and School Board guidelines. You were not required to review detailed specifications for any such hardware or software.

You further advise that your wife is the sole owner of a company which deals in the sale of computers and computer-related equipment. You advise that you are not an officer or director of that business entity and hold no employment or contractual relationships with that entity. Your wife expressed an interest in doing business with the School Board as well as with other public agencies and the consolidated government of the City of Jacksonville. Both you and your wife met with the City's chief purchasing officer, as the City's purchasing office also handles the purchasing functions for the School Board pursuant to certain provisions in the City Charter. The chief purchasing officer advised you that any transactions between your wife's company and the School Board would be proper if such business was awarded under a system of sealed, competitive bidding and a proper conflict of interest statement was filed. Although the City's purchasing code exempts certain transactions from the sealed, competitive bidding process if the cost is $8,000 or less, an agreement was made that regardless of the amount of the purchase price involved, any transactions involving your wife's company would utilize sealed, competitive bids. Your wife later filed a CE Form 3, Disclosure of Specified Business Interests, which was given to her by the Duval County Supervisor of Elections.

You state that the sealed, competitive bidding process was followed whenever your wife did business with the School Board, except in two cases. These instances occurred after the purchasing officer who normally handled computers and computer-related products retired. His successor was unfamiliar with the existing arrangement between your wife and the City and utilized telephone solicitations on two occasions. Your wife's company was awarded the business in both cases, although she actually participated in only one of these transactions due to time constraints. The amount of this transaction was $357. You advise that at no time during the course of any business transaction did you or your wife suggest or request that telephone bid solicitations be used. Now that the new purchasing employee is familiar with the competitive bidding requirement, all future business between your wife's company and the School Board will be transacted by sealed, competitive bids.

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.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1985).]

The first part of this provision prevents a public employee acting in his official capacity as a purchasing agent from purchasing goods for his own agency from any business entity which is owned by his spouse. As a school district constitutes a political subdivision pursuant to Section 230.01, Florida Statutes, and as the definition of "agency" contained in Section 112.312(2), Florida Statutes, includes "any public school," the purchasing agent of a school board seemingly is prohibited from purchasing goods from his spouse's business for the school board which employs him or for any school within that district.

Section 112.312(16), Florida Statutes, defines a "purchasing agent" as a public employee having the authority to commit the expenditure of public funds through a contract for, or the purchase of, any goods. In a telephone conversation with our staff you advised that at no time have you served as a purchasing agent as that term is defined by the Code of Ethics.

The second part of this provision prevents you from being an officer, director, or owner of a business entity which is selling any goods to your agency. As your wife is the sole owner of the computer supply company and as you advised that you do not serve as an officer or director of that company, any sales to your agency would not be prohibited.

Accordingly, we find that no prohibited conflict of interest would be created were a computer supply company owned by the spouse of a school board's assistant superintendent for finance to sell computer wares to the school board.