CEO 82-43 -- July 1, 1982
CONFLICT OF INTEREST
MOSQUITO CONTROL DISTRICT BOARD MEMBER SELLING EQUIPMENT TO DISTRICT
To: Mr. Joe Cash, Director, East Flagler Mosquito Control District
A mosquito control district board member is prohibited by Section 112.313(3), Florida Statutes, from selling small engines to the district at cost, unless the sale would come within the terms of one of the exemptions contained in Section 112.313(12), Florida Statutes. Section 112.313(3) contains no exemption for sales which are made without a profit. Complaint No. 78-75, In re James Robinson, and Complaint No. 80-24, In re John Sunderland, are referenced in this regard.
Would a prohibited conflict of interest be created were a member of a mosquito control district board to sell small engines to the district at cost?
Your question is answered in the affirmative, subject to the exceptions noted below.
In your letter of inquiry you advise that Mr. E. H. Combs, an elected member of the Board of Commissioners of the East Flagler Mosquito Control District, is a distributor of small engines. You also advise that he is willing to provide engines to the District at cost, as documented by shipping invoices.
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.
(c) Appointment to public office.
(d) Beginning public employment.
[Section 112.313(3), Florida Statutes (1981).]
This provision prohibits the District Board member from acting in a private capacity to sell goods to the District and from acting in an official capacity to purchase goods for the District from himself. The provision contains no exemptions for sales which are made without a profit, and we have not interpreted this law to exempt such sales. For example, in Complaint No. 78-75, In re James Robinson, final order entered June 11, 1979, we found that Section 112.313(3) had been violated where a city police officer sold helicopter parts to the city at actual cost. Similarly, in Complaint No. 80-24, In re John Sunderland, final order entered March 3, 1981, we found that Section 112.313(3) had been violated where a fire control district commissioner sold fire equipment to the district without receiving any commission or profit.
However, the subject Board member may sell engines to the District if the sales come within the terms of one of the exemptions provided in Section 112.313(12), Florida Statutes. The exemptions which are most likely to apply to the situation you have referenced are set forth below:
(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.
(e) The business entity involved is the only source of supply within the political subdivision of the officer or employee, and there is full disclosure of the officer's or employee's business entity to the governing body of the political subdivision.
(f) The total amount of the subject transaction does not exceed $500.
Accordingly, unless the sale would come within the terms of one of the exemptions contained in Section 112.313(12), Florida Statutes, we find that the subject Mosquito Control District Board member is prohibited from selling small engines to the District.