CEO 79-10 -- February 22, 1979

CONFLICT OF INTEREST

CITY COMMISSIONER BIDDING TO PURCHASE SURPLUS CITY PROPERTY

To: Frank C. Adler, Dania City Attorney, Fort Lauderdale

Prepared by: Phil Claypool

SUMMARY:

In CEO 77-15 the Commission on Ethics advised that s. 112.313(7), F. S. 1977 would prohibit a county commissioner from purchasing surplus vehicles from the county by submission of a sealed bid. Since that opinion was issued, the Code of Ethics has been amended so as to provide certain limited exemptions from this prohibition, including an exemption when "the business is awarded under a system of sealed, competitive bidding to the lowest or best bidder" and certain other disclosures and limitations are followed. Section 112.313(12)(b), F. S. 1977. It is apparent from the language "the lowest and best bidder," however, that the exemption addresses situations in which a public official wishes to sell or lease goods or services to his own agency, in which cases the lowest or best bid is preferable. In the instant situation, when a city commissioner wishes to purchase vehicles from the city by bid, the city undoubtedly would seek to sell to the highest bidder. The above-cited exemption therefore is deemed inapplicable, and a prohibited conflict of interest would be created were the city commissioner to purchase surplus vehicles from the city.

QUESTION:

Would a prohibited conflict of interest be created were a city commissioner to purchase surplus city property by bid?

Your question is answered in the affirmative.

In your letter of inquiry you advise that the city commission of the City of Dania has declared two trucks surplus and intends to offer them for sale to the highest bidder, with sealed bids being used, after advertisement of their sale in a local newspaper. Mr. Hirsch, a member of the commission, is inquiring whether he or one of his business corporations can submit a bid for this property.

In a previous opinion, CEO 77-15, we advised that s. 112.313(7), F. S., of the Code of Ethics for Public Officers and Employees would prohibit a county commissioner from purchasing surplus vehicles from the county by submission of a sealed bid. Since that opinion was issued, the Code of Ethics has been amended to provide, in part, as follows:

(12) . . . no person shall be held in violation of subsection (3) or subsection (7) if:

(b) The business is awarded under a system of sealed, competitive bidding to the lowest or best bidder and:

1. The official or his spouse or child has in no way participated in the determination of the bid specifications or the determination of the lowest or best bidder;

2. The official or his spouse or child has in no way used or attempted to use his influence to persuade the agency or any personnel thereof to enter such a contract other than by the mere submission of the bid; and

3. The official, prior to or at the time of the submission of the bid, has filed a statement with the Department of State, if he is a state officer or employee, or with the Clerk of the Circuit Court of the county in which the agency has its principal office, if he is an officer or employee of a political subdivision, disclosing his, or his spouse's or child's, interest and the nature of the intended business. [Section 112.313(12)(b), F. S. 1977.]

However, it is apparent from the language "the lowest or best bidder" that this exemption addresses situations in which a public official wishes to sell or lease goods or services to his own agency, in which cases the lowest or best bid is preferable. Here, however, the subject city commissioner wishes to purchase vehicles from the city, in which case the city naturally would sell to the highest bidder. Therefore, we do not believe that the exemption in s. 112.313(12)(b) was intended by the Legislature to apply under these circumstances.

Accordingly, we adhere to the reasoning of CEO 77-15 and find that a prohibited conflict of interest would be created were the subject city commissioner to purchase surplus vehicles from the city.