CEO 90-37 -- April 26, 1990

CONFLICT OF INTEREST

STATE BOARD OF COMMUNITY COLLEGES MEMBER PARTNER

IN FIRM DOING BUSINESS WITH COMMUNITY COLLEGE FOUNDATION

To: Thomas J. Murphy, Member, State Board of Community Colleges (Tampa)

SUMMARY:

No prohibited conflict of interest would be created were a member of the State Board of Community Colleges to be a partner in a firm leasing buildings to a community college board of trustees or selling that property to a community college foundation. The member would not be leasing or selling to the Board which is his agency under Section 112.313(3), Florida Statutes. Nor is the partnership doing business with his agency, as would be prohibited under Section 112.313(7)(a), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created were you, a member of the State Board of Community Colleges, to be a partner in a firm which leases buildings to the board of trustees of a community college or seeks to sell these buildings to the community college foundation?

Your question is answered in the negative.

In your letter of inquiry, you advise that you are a member of the State Board of Community Colleges. You also advise that you are a partner in a limited partnership which leases buildings to the board of trustees of a community college. You advise that the community college foundation has expressed an interest in purchasing the buildings from your partnership. You inquire as to whether this transaction would create a prohibited conflict of interest.

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.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes.]

This provision would prohibit you from leasing or purchasing for your agency from a business entity of which you are a partner. It also would prohibit you from acting in your private capacity to sell to your agency. However, for purposes of the Code of Ethics, your "agency" is the State Board of Community Colleges, and there is no indication that you are transacting any business with that Board. See the definition of "agency" provided at Section 112.312(2), Florida Statutes.

In addition, Section 112.313(7)(a), Florida Statutes, provides:

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 would prohibit you from holding employment or a contractual relationship with a business entity which is doing business with your agency. Again, there is no indication that the partnership with which you hold a contractual relationship is doing business with the State Board of Community Colleges. Rather, the firm is doing business with the board of trustees of the community college with regard to the lease and would be doing business with the community college foundation through a sale of the property.

In addition, Section 112.313(7)(a) would prohibit you from holding a contractual relationship with the partnership if it would create a continuing or frequently recurring conflict with your public duties as a member of the Board. You do not indicate that the State Board of Community Colleges would have any role in the proposed sale of property to the foundation. On this basis, we do not see any impediment to your public duties in the proposed transaction. See CEO 83-30, where no prohibited conflict was found where a county health department employee was employed with a partnership which contracted with the county sheriff's office.

Accordingly, we find that no prohibited conflict of interest would be created were you, a member of the State Board of Community Colleges, to be a partner in a firm which leases buildings to a community college board of trustees or seeks to sell the property to a community college foundation.