CEO 87-94 -- December 10, 1987

CONFLICT OF INTEREST

CLERK OF COURT'S SPOUSE EMPLOYED BY

COUNTY CORPORATION DOING BUSINESS WITH CLERK'S OFFICE

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

SUMMARY:

No prohibited conflict of interest would be created under the Code of Ethics for Public Officers and Employees were the spouse of a clerk of the circuit court to be employed by a corporation which is doing business with the clerk's office. CEO 86-5 is referenced.

QUESTION:

Would a prohibited conflict of interest be created were your spouse to be employed by a corporation which is doing business with the county clerk's office, where you serve as the clerk of the circuit court?

Your question is answered in the negative.

In your letter of inquiry you advise that you are the Clerk of the Circuit Court of Sarasota County. You further advise that your fiance is employed as a district sales manager for a large international corporation. The office of the Clerk of the Circuit Court purchases goods and services from this corporation. Your fiance's district includes Sarasota County, although he is not the salesman handling your office's account. He is not an officer, partner, director, or proprietor of the corporation, and does not own a material interest in the corporation. He is a salaried employee who receives a bonus based upon sales revenue, profits, corporate asset management and expense control. You question what precautions you should take as the spouse of an employee of the corporation when purchasing goods or services from that corporation for your agency.

Section 112.3185(6), Florida Statutes, prohibits an agency employee from acting in her official capacity to procure contractual services for her own agency from any business entity of which her spouse is an officer, partner, director, or proprietor or in which she, her spouse, child, or any combination of them has a material interest. The definition of "agency" for purposes of Section 112.3185 includes "any state officer, department, board, commission, or council of the executive branch or judicial branch of state government." Therefore, these provisions would not apply to you as the Clerk of the Circuit Court.

In CEO 86-5 we advised that Sections 112.313(3) and (4), Florida Statutes, are the only provisions of the Code of Ethics for Public Officers and Employees which specifically concern conflicts of interest for local public officers based upon a spouse's interests or actions. Section 112.313(3) 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. 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 (1985).]

This provision prohibits you from acting in an official capacity to purchase any goods or services for your agency from a business entity of which your spouse is an officer, partner, director, or proprietor or in which he owns more than a five percent interest. This provision also prohibits you as an officer of a political subdivision from acting in a private capacity to sell any goods or services to the political subdivision you serve or to any agency thereof. Here, these prohibitions are not applicable since your spouse would have no interest in the corporation except as an employee, and you do not have any interest in the corporation.

Additionally, Section 112.313(4), Florida Statutes, provides:

UNAUTHORIZED COMPENSATION. -- No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity.

While it does not appear that this provision would apply to the circumstances you have described, it would prohibit your spouse from accepting any compensation given in order to influence some official action in which you were expected to participate.

Please be advised that the Code of Ethics also provides:

MISUSE OF PUBLIC POSITION. -- No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes (1985).]

We would caution you that there could be the appearance of a misuse of public position were you to use your official position to benefit your spouse's employer without giving competitors an equal opportunity to compete for business.

Your question is answered accordingly.