To: Bobby L. "Bo" Sechrest, City Councilman (Parker)
SUMMARY:
Section 112.313(3), Florida Statutes, prohibits a member of a city council from acting in his official capacity to purchase goods or services for the city from a business in which his wife is an officer, partner, director, or proprietor, or in which she owns more than a five percent interest. A member of a governing board acts in an official capacity when action is taken by the entire group. Because the contract between the councilman's wife and the city was not entered into prior to his qualification for office, it was not "grandfathered"
However, the contract was awarded to the councilman's wife under a system of sealed competitive bidding and it does not appear that either the councilman or his wife participated in either the determination of the bid specifications or the lowest and best bidder, or used or attempted to use his influence to persuade the city council or any of its employees to enter into the contract. Also, the wife's proposal was discussed publicly at two city council meetings prior to the councilman's election to the council, the councilman abstained from voting on the bid and submitted a memorandum of voting conflict (CE Form 8B) in which he disclosed his wife's interest in the contract or the bid, and he subsequently filed a CE Form 3A (Interest In Competitive Bid for Public Business).
QUESTION:
Through your letter of inquiry and our staff's conversation with your wife, we are advised that in June 1993, prior to your election to the City Council, your wife overheard members of the City Council discussing how they could upgrade the appearance of the City without expending City funds. You advise that your wife came up with the idea of opening a snack bar in one of the City's parks and discussed her idea with the City Clerk, who requested that she prepare a proposal for submission to the City Council.
You advise that your wife proposed that her company, which is owned solely by her and in which you own no financial or other interest, would provide daily grounds maintenance to a park. It also would cut and trim all grassy areas and palm trees, as needed, and pay all utilities, liability insurance premiums, and labor costs.
You advise further that because the City would be doing business with a "private enterprise," on July 21, 1993, the City Attorney advised the City Council to advertise the services that your wife had proposed through a sealed, competitive bid process. However, because of "system backlog" and upcoming City elections, the City did not advertise for bids until October 6, 1993, you advise. You advise that you qualified for office on July 21, 1993 and were elected to the City Council on September 11, 1993. You also advise that you attended the November 2, 1993 meeting at which your wife's company's bid was opened and accepted. However, you abstained from voting on the bid and filed CE Form 8B (Memorandum of Voting Conflict for County, Municipal, and other Local Public Officers).
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.
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VOTING CONFLICTS.--No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.
Section 112.313(3), Florida Statutes, prohibits you from acting in your official capacity to purchase any goods or services for your agency, the City council, from a business entity of which your wife is an officer, partner, director, or proprietor or in which she owns more than a five percent interest. We previously have advised that a member of a governing board acts in his official capacity whenever official action is taken by the group. See CEO 75-201, CEO 79-65, CEO 82-65, and CEO 92-43.
This would violate Section 112.313(3), Florida Statutes, unless one of the statutory exemptions to the application of Section 112.313(3), Florida Statutes, applies. For example, exempted from application of this statute are contracts entered into prior to your qualification for office. However, we find that inasmuch as the contract between your wife's company and the City, which we assume was entered into either on or after the November 2, 1993 City Council meeting at which her bid was opened and accepted, was not entered into prior to your qualification for office on July 21, 1993, her company's contract was not "grandfathered" in under Section 112.313(3)(b), Florida Statutes. See CEO 86-54 and CEO 86-71.
However, another exemption to Section 112.313(3) appears at Section 112.313(12)(b), Florida Statutes. This provision exempts business awarded to the lowest bidder under a system of sealed competitive bidding, but only where: (1) neither the official nor his spouse has participated in either the determination of the bid specifications or the lowest and best bidder; (2) neither the official nor his spouse has used or attempted to use his influence to persuade the City Council or any of its employees to enter into such a contract, other than by the mere submission of a bid; and (3) the officer, prior to or at the time of submission of the bid, has filed a statement with the Supervisor of Elections disclosing his interest, or the interest of his spouse, and the nature of the intended business. This disclosure should be made on CE Form 3A. Because we have no information indicating that either you or your wife participated in the determination of the bid specifications or the lowest and best bidder or that either you or your wife used or attempted to use your influence to persuade the City Council to enter into the contract, it appears that the first two requirements of Section 112.313(12)(b) have been met. We also find that your wife's proposal was discussed publicly at a City Council meeting on June 29, 1993 (prior to your election to the City Commission) and again on July 21, 1993, when the City Attorney advised the City Council that the contract would have to be awarded under a system of sealed competitive bidding. In addition, we find that although you did not file CE Form 3A either prior to or at the time of submission of your wife's company's bid, you abstained from voting on the bid and filed CE Form 8B (Memorandum of Voting Conflict for County, Municipal, and other Local Public Officer), on which you were required to disclose your wife's interest in the contract, with the County Supervisor of Elections. Since the vote, you also have filed CE Form 3A. Under these circumstances, we find that substantial compliance with the disclosure requirements of Section 112.313(12)(b), Florida Statutes, was effected and no prohibited conflict of interest exists. See CEO 86-29
Section 112.3143(3)(a), Florida Statutes, prohibits a local public officer from voting upon any measure which, among other things, would inure to either his special private gain or to that of a relative, such as his wife. See Section 112.3143(1)(b), Florida Statutes, defining "relative." It also requires a local public officer who is faced with a voting conflict to publicly state the nature of his interest in the matter prior to the vote being taken from which he will be abstaining and, within 15 days of the vote, to file a memorandum of voting conflict (CE Form 8B) to be incorporated in the minutes of the meeting.
Accordingly, we find that under the circumstances, substantial compliance with the requirements of Section 112.313(12)(b), Florida Statutes, has been effected and, therefore, your wife's contract with the City comes within the sealed, competitive bid exemption to the Section 112.313(3) prohibition against your wife's company doing business with the City.