CE0 94-12 -- March 10, 1994
CONFLICT OF INTEREST
JUNIOR COLLEGE PRESIDENT'S SPOUSE SHAREHOLDER IN SAME
LAW FIRM AS ATTORNEY FOR COLLEGE DISTRICT BOARD OF TRUSTEES
To: Mr. Joseph H. Lang, Chairman, St. Petersburg Junior College District Board of Trustees (St. Petersburg)
Section 112.313(3), Florida Statutes, would not be violated where a junior college president's spouse is a shareholder in the same law firm as the attorney representing the college district board of trustees. The college president, who has no involvement in the board's selection of its attorney, is not acting in his official capacity as a purchasing agent and is not a public officer acting in his official capacity for purposes of Section 112.313(3), Florida Statutes, when the board selects and retains an attorney to represent the interests of the board. CEO 87-52 is referenced.
Would a prohibited conflict of interest be created were an attorney in the same law firm in which the junior college president's wife is a shareholder to serve as counsel to the college district board of trustees?
Under the circumstances presented, your question is answered in the negative.
In your letter of inquiry and in subsequent information provided to our staff, we are advised that the attorney who represents the St. Petersburg Junior College District Board of Trustees has advised the Board that he is leaving his current law firm and joining a law firm in which the wife of the College President is a shareholder. Although the Board wishes to have the attorney continue in his representation of the Board, it questions whether the situation creates a conflict of interest prohibited by the Code of Ethics for Public Officers and Employees.
The applicable provision of the Code of Ethics is Section 112.313(3), Florida Statutes, which 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 of 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 or when such offices are on property wholly or partially owned by the legislator. 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 (1993).]
This statute prohibits an employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, from purchasing services for his agency from a business entity in which his spouse is an officer, partner, director, or proprietor, or in which his spouse owns more than a 5 percent interest.
We are advised that the College President's spouse is, in addition to being a shareholder in the firm, a full partner owning a "material interest" in the firm as that term is defined in Section 112.312(15), Florida Statutes. The first question, then, is whether the College President would be acting in his official capacity as a "purchasing agent" when the District Board of Trustees purchases legal services from the law firm. Section 112.312(20), Florida Statutes, defines "purchasing agent" to mean
a public officer or employee having the authority to commit the expenditure of public funds through a contract for, or the purchase of, any goods, services, or interest in real property for an agency, as opposed to the authority to request or requisition a contract or purchase by another person.
In CEO 87-52, we opined that Section 112.313(3), Florida Statutes, was not violated where a school board assistant superintendent's spouse was the owner of a business doing business with the school board because, there, the assistant superintendent was not a "purchasing agent" as that term was defined by the Code of Ethics. In this situation, we are advised that the College President is not involved in any manner with the selection of the attorney for the District Board of Trustees. The Board attorney is retained directly by the Board, you advise, by vote of the Board upon the recommendation of Board members, and performs services directly for the Board, particularly those in which some conflict may exist with the College administration's recommendation or procedure. We also are advised that the College employs its own full-time attorney as College attorney and that that employee reports directly to the College President. The College President has no authority to direct the Board attorney in the performance of any services other than implementing those as directed by the Board of Trustees. Thus, based upon the facts you have related, we find that the College President would not be acting as a "purchasing agent" to purchase legal services for the College District Board of Trustees.
The next question is whether the College President is a "public officer acting in his official capacity" to purchase legal services for the Board. Although the College President serves as Secretary to the Board of Trustees for the College District, he is not considered to be a member of the Board and has no vote as Board secretary. While we recognize that Section 112.3145(1)(a)3, Florida Statutes, designates community college presidents as "local public officers" for purposes of financial disclosure, we do not believe that under the facts you have represented the College President is "acting in his official capacity" when the Board of Trustees purchases legal services for the Board, particularly where the College president has no involvement in any manner with the selection of, and has no authority over, the Board's attorney.
Accordingly, under the circumstances presented, we do not find that Section 112.313(3), Florida Statutes, would be violated where the College President's spouse is a shareholder and partner in the same law firm as the attorney representing the College District Board of Trustees.