CEO 76-10 -- January 16, 1976

CONFLICT OF INTEREST

CITY EMPLOYEE SELLING GOODS TO CITY AGENCIES

To: (Name withheld at the person's request.)

Prepared by: Gene Rhodes

SUMMARY:

An employee of a city police department who is the owner of a business which sells goods to that department and to other agencies of the city is in violation of Fla. Stat. s. 112.313(3)(1975) which provides that a local officer may not privately deal with his own political subdivision or any agency therein. Although a clear conflict is seen to exist where the employee sells to his own agency, the police department, primary importance is given to another section of the Code of Ethics, s. 112.316, insofar as selling to other city agencies is concerned. This statute provides that it is not the intention of the Code of Ethics to prevent one from holding outside interests which in no way interfere with the full and faithful discharge of public duty. Inasmuch as the subject employee has no input into policymaking decisions of other city agencies and is not involved in recommending or influencing what goods will be purchased by agencies other than his own, no conflict of interest is deemed to exist where his privately owned business sells to agencies other than the police department.

QUESTION:

Does a prohibited conflict of interest exist where a city police department employee owns a business selling goods to the police department and other city agencies?

Your question is answered in the affirmative as to sales to the city police department and in the negative as to other city agencies.

Your letter of inquiry advises us that, as a road patrolman, you have no policymaking or purchasing authority. You are sole owner of a business establishment that sells goods to the police department, the fire department, and other city agencies.

The Code of Ethics for Public Officers and Employees states 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 for his own agency purchase, rent, or lease any realty, goods, or services from any business entity of which he, his spouse, or child is an officer, partner, director, or proprietor, or in which such officer or employee, 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, if he is serving as an officer or employee of any political subdivision, to that subdivision or to any agency thereof. 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 nor be construed to prohibit contracts entered into prior to:

(a) The effective date of this act;

(b) Qualifications for elective office;

(c) Appointment to public office;

(d) Beginning public employment.

[Emphasis supplied; Fla. Stat. s. 112.313(3)(1975).]

The emphasized portion of the above-quoted provision clearly prohibits officers of a political subdivision from selling goods to agencies of that subdivision. Accordingly, you, as the owner of a business enterprise, are prohibited from selling goods to the city police department, and it appears that you are prohibited from selling goods to any other city agency while concurrently being employed by the city police department. However, in construing the provisions of this code as they apply to other employment we must place primary importance on that provision of the Code of Ethics which states:

CONSTRUCTION. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Fla. Stat. s. 112.316(1975).]

The above-quoted provision makes it clear that the Code of Ethics shall not be construed to prohibit a public officer or employee from following a pursuit which does not interfere with the full and faithful discharge of his duties. Each standard of conduct must be read with this qualification in mind. However, you have no input into policymaking decisions of other city agencies. Nor do your public duties in any way include approval of or the giving of advice or recommendations as to what goods will be purchased by city agencies other than the police department. This being the case, your selling goods to city agencies other than the police department does not in our view interfere with the full and faithful discharge of your public duties and, unlike selling directly to the police department, is permissible under the Code of Ethics.