CEO 89-52 -- October 26, 1989

CONFLICT OF INTEREST

COUNTY COMMISSIONER OR COUNTY EMPLOYEE DONATING DIRT FOR COUNTY ROADS

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 a county employee not employed with the road department to offer fill dirt from his property to the county road department which results in a borrow pit being dug on his property. A county commissioner or an employee of the road department may not make such an exchange, as it would constitute a sale of goods to his agency or a subdivision thereof. However, if the total amount of the subject transaction is less than $500, it would be exempt under Section 112.313(12)(f), Florida Statutes, and no prohibited conflict would be created.

QUESTION:

May a county commissioner or a county employee permit the county road department to dig a borrow pit on his property to collect dirt for use in road maintenance?

Your question is answered in the affirmative with regard to county employees generally, and in the negative with regard to county commissioners or employees of the county road department.

In your letter of inquiry, you advise that Columbia County has over 600 miles of dirt roads which must be maintained through the use of limerock and dirt. Historically, the County has accepted dirt for road maintenance from various citizens who would permit the County to dig a borrow pit on their property. The County provides no compensation for this dirt, and the landowner is left with a large pit which may be developed into a fish pond, stock watering hole, or for other use. Any landowner in the County may volunteer his land for this purpose, with parcels being selected based on proximity of the property to needed road projects. You advise that on occasion dirt has been accepted from employees and officers of the County as well as from private individuals. You feel that the fair market value of the dirt removed far exceeds the cost the donating landowner would expend in digging a pit for his own use. You also advise that, typically, no written agreement is signed between the landowner and the County. Rather, the details of the arrangement are worked out informally between the landowner and the County Road Department.

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.

(d) Beginning public employment.

Under this provision, County officers and employees, acting in a private capacity, may not sell realty or goods to the County or to any agency thereof.

In determining whether this transaction is prohibited under the above provision, we must determine first whether the transaction constitutes a sale of goods for purposes of the Code of Ethics. If this question is answered in the affirmative, we then must determine whether the officer or employee would be selling to the County or an agency thereof.

With regard to the first question, we find that the subject transaction is a sale of goods. In CEO 82-50, we advised that a donation of services did not constitute selling to one's agency where the donor received no compensation of any kind. In CEO 82-43, we held that Section 112.313(3) would be violated where a district board member sold equipment to the district at cost and made no profit on the transaction. In the context of a lease agreement, a prohibited business transaction existed where property was leased to a governmental entity for $1 per year. See CEO 77-176. In your letter of inquiry, you advise that the cost of the dirt removed far exceeds the expenditure the landowner would make in digging a water retention area. However, under the rationale of these decisions, the landowner is still receiving something of value in exchange for the dirt removed. The fact that the values exchanged are not equal does not exempt the transaction from constituting a sale.

The second question involves defining the political subdivision and the agency of an officer or employee to determine what entity is participating in the sale. In your letter of inquiry, you cite County Commissioners and employees of the County as being involved in these transactions. In CEO 83-58, we advised that a county commissioner may not sell services to the county, which is his political subdivision, or to the county supervisor of elections office, which we determined to be an agency of the county. Under the rationale of that decision, a County Commissioner may not provide dirt to the County Road Department in exchange for the digging of a borrow pit on his property because the Road Department is an agency of the County, his political subdivision. With regard to County employees, persons employed within the Road Department similarly would be barred from transactions with their agency, the Road Department. With regard to County employees who do not work within the Road Department, however, we have advised previously that Section 112.313(3) would not prohibit an employee of a political subdivision from selling to agencies of the political subdivision other than his agency, so long as that individual is not responsible in any manner for the approval of or the giving of advice or recommendations as to the purchase. See CEO 83-30, CEO 82-42, and CEO 81-66. Under this rationale, the County Road Department could accept dirt from County employees who are not employed by the Road Department and who have no authority over the process of selecting properties for borrow pits.

In addition, Section 112.313(12)(f), Florida Statutes, provides an exemption to this prohibition where the total amount of the transaction does not exceed $500. From your letter of inquiry, we cannot determine the values involved. However, if the value of the dirt removed or of the borrow pit dug on the property of the officer or employee, whichever is higher, does not exceed this amount, the transaction would not be prohibited in any of the cases described above. Also, if the transaction falls within any of the other exceptions provided in Section 112.313(12), Florida Statutes, it would not be prohibited.

Accordingly, we find that employees of the County not employed with the Road Department may exchange dirt from their property with the County Road Department for a borrow pit to be excavated on their property, subject to the conditions noted above. However, County Commissioners and Road Department employees may not engage in such transactions unless the value of the transaction does not exceed $500 or unless the transaction falls within the terms of one of the other exemptions of Section 112.313(12), Florida Statutes.