CEO 82-60 -- July 29, 1982

CONFLICT OF INTEREST

PURCHASING AGENT'S RESPONSIBILITY FOR DETERMINING COMPLIANCE WITH CODE OF ETHICS

To: Mr. W. B. Parramore, Director of Purchasing, The Florida State University

SUMMARY:

While no provision of the Code of Ethics requires a purchasing agent to determine whether the provisions of the Code of Ethics have been complied with before purchasing a particular item, Section 112.3175, Florida Statutes, provides that any contract that has been executed in violation of the Code of Ethics is voidable by any party to the contract, or in circuit court by the Commission on Ethics, the Attorney General, or any citizen materially affected by the contract. For this reason, it is suggested that a purchasing agent who is aware of a potential problem under the Code of Ethics should attempt to determine whether there has been compliance with the Code of Ethics before authorizing a particular purchase.

If there is a protest to a bid which involves the Code of Ethics, the protest should be directed to and resolved by the public agency under Section 120.53(5), Florida Statutes. It does not appear that the Commission on Ethics has any authority to resolve bidding disputes arising from the actions of other State agencies. No determination is made as to whether such bidding disputes can be resolved under the procedures of Section 120.53(5) by the agency or whether such disputes may be resolved only by litigation in a circuit court pursuant to Section 112.3175, Florida Statutes.

QUESTION 1:

Are you, the director of purchasing for a State University required to determine compliance with the provisions of the Code of Ethics for Public Officers and Employees before purchasing a particular item?

In your letter of inquiry you advise that you are the Director of Purchasing for The Florida State University. You also advise that occasionally a purchasing agent may receive a requisition from an employee or public official to purchase an item with State funds, where the purchasing agent is aware that the requisitioner is employed by or has a contractual relationship with the recommended supplier. In most situations of this type, you advise, the competitive bidding process has been utilized and the remaining question to be determined is whether the provisions of the competitive bidding exemption contained in Section 112.313(12)(b), Florida Statutes, have been met. You question whether the agency purchasing agent in a case like this has a duty to insure that there has been compliance with the provisions of that Section.

As we view the prohibitions contained in the Code of Ethics for Public Officers and Employees, those prohibitions apply to each individual public officer or employee. There is no provision within the Code of Ethics which directly places upon a purchasing agent, or even an agency head, the duty of determining whether there has been compliance with the Code of Ethics before a particular purchase is made. Therefore, we cannot advise you that you have an obligation imposed by law to determine compliance with the Code of Ethics.

However, as a practical matter, we note that Section 112.3175, Florida Statutes, provides that any contract which has been executed in violation of the Code of Ethics is voidable by any party to the contract, or in circuit court by the Commission on Ethics, the Attorney General, or any citizen materially affected by the contract. The term "materially affected" is defined in Section 112.312(12), Florida Statutes.

Generally, we believe that each public agency has a significant interest in seeing that its contracts cannot be voided. For this reason we would suggest that a purchasing agent who is aware of a potential problem under the Code of Ethics should attempt to determine whether there has been compliance with the Code of Ethics before authorizing a particular purchase. Our staff is available to respond to inquiries in this regard.

QUESTION 2:

If there is a protest to a bid which involves the Code of Ethics for Public Officers and Employees, should the protest be directed to the public agency or to the Commission on Ethics?

It does not appear that we have any authority to resolve bidding disputes arising from the actions of other State agencies. Our primary authority is limited to the investigation of complaints and the rendering of advisory opinions.

Under Section 120.53(5), Florida Statutes, the Legislature has provided procedures for the resolution of bidding disputes by the agency which is seeking to enter into a contract. We also note that under Rule 6C2-2.15(23), F.A.C., the Director of Purchasing, the Vice President for Administrative Affairs, and the President of the University may resolve protests to the award of a contract. Therefore, it appears that protests to bids on the basis of alleged violations of the Code of Ethics should not be directed to the Commission on Ethics. In rendering this advice, we make no determination of whether such bidding disputes can be resolved under the procedures of Section 120.53(5) or Rule 6C2-2.15(23) by the agency or whether such disputes may be resolved only by litigation in a circuit court pursuant to Section 112.3175, Florida Statutes.