CEO 77-37 -- March 9, 1977

CONFLICT OF INTEREST

FIRE CONTROL DISTRICT BOARD MEMBER SELLING GOODS TO DISTRICT

To: Hugh Paul Nuckolls, Fort Myers

Prepared by: Phil Claypool

SUMMARY:

A public officer is prohibited by s. 112.313(3), F. S. 1975, from acting in his official capacity to purchase goods for his own agency from a business entity of which he is the proprietor and from acting in a private capacity to sell goods to his own political subdivision. An officer is deemed to be acting in his official capacity whenever the voting body of which he is a member takes action as a whole, and acts in a private capacity whenever a business entity in which he owns at least a material interest takes action. Accordingly, both clauses of the above-cited s. 112.313(3) are violated where a member of a fire control district board privately sells goods to that district.

QUESTION:

Would a prohibited conflict of interest exist were a fire control district board member to sell goods to the district of which he is an officer?

Your question is answered in the affirmative.

You have stated in your letter of inquiry that Mr. Gary F. Parker, a member of the Board of the Matlacha-Pine Island Fire Control District, owns and operates a hardware store within the district. The nearest suppliers of hardware goods needed by the district, other than Mr. Parker's store, are located 14 and 18 miles from the shop which requires the items.

The Code of Ethics for Public Officers and Employees provides:

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 . . . . [Section 112.313(3), F. S. 1975.]

This provision prohibits a public officer acting in his official capacity from purchasing goods for his own agency from a business entity of which he is the proprietor and also prohibits a public officer acting in a private capacity from selling any goods to his own political subdivision.

We have previously found that a member of a voting body acts in his official capacity whenever that body as a whole takes action. See CEO 75-201. We have also determined that one acts in a private capacity whenever a business entity in which one owns at least a material interest takes action. As the agency of the subject board member is the fire control district, he is therefore prohibited from selling goods from his hardware store to the district. We realize that this places a hardship upon the district, but we have found in previous cases that the location of sources of supply is irrelevant to the above-quoted provision. Past examples of this are found in CEO's 76-31, 76-91, and 76-174, copies of which are enclosed.

Accordingly, we find that a prohibited conflict of interest would exist were the subject fire control district board member to sell hardware goods to the district of which he is an officer.