CEO 86-54 -- July 24, 1986

CONFLICT OF INTEREST

COUNTY COMMISSIONER'S SPOUSE'S ENGINEERING FIRM DOING BUSINESS WITH COUNTY

To: Ms. Judy L. Culpepper, Potential Candidate for St. Lucie County Board of County Commissioners (Fort Pierce)

SUMMARY:

No prohibited conflict of interest would be created were an individual to serve as a county commissioner where her spouse's engineering and surveying firm has contracted to provide consulting engineering services for the county prior to her qualification as a candidate for the county commission. Although Section 112.313(3), Florida Statutes, prohibits a county commissioner from acting in an official capacity to purchase services from a business entity of which her spouse is an officer or owns more than a 5% interest, Section 112.313(3)(b) "grandfathers in" contracts entered into prior to qualification for office. In addition, no prohibited conflict of interest would be created were the individual to serve as a county commissioner if her spouse's engineering and surveying firm were to be a subcontractor of an architectural firm in connection with a contract between the architectural firm and the county. CEO's 76-213, 78-43, and 78-83 are referenced.

QUESTION 1:

Would a prohibited conflict of interest be created were you to serve as a county commissioner, where your spouse's engineering and surveying firm has contracted to provide consulting engineering services for the county prior to your qualification as a candidate for the county commission?

This question is answered in the negative.

In your letter of inquiry you advise that you are a potential candidate for the St. Lucie County Board of County Commissioners. You also advise that the engineering and surveying firm of which your husband is president has contracted with the County to provide consulting engineering services. You hold no stock in the corporation and do not serve as an officer or director of the corporation. In a telephone conversation with our staff, your attorney advised that you also have no employment or contractual relationship with the corporation. Under the contract, the County must approve each project to which the engineering firm is assigned, much like a change order in a construction contract, you advise. The contract is on a rotating basis with another local firm which holds a similar contract.

The Code of Ethics for Public Officers and Employees provides 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 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.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1985).]

This provision prohibits a county commissioner from acting in an official capacity to purchase services from a business entity of which his or her spouse is an officer, director, or owns more than a five percent interest. See our previous opinion to you, CEO 82-65. Therefore, you would be prohibited from serving on the County Commission if your husband's firm, of which he is president and presumably owns more than a five percent interest, has contracted to provide consulting services to the County. However, Section 112.313(3)(b) provides a "grandfather clause," which clearly would exempt any contract entered into prior to your qualification for office. Therefore, we are of the opinion that your husband's firm would not be required to forfeit its contract with the County should you be elected.

If you are elected to the County Commission and the County Commission is required to vote on matters concerning your husband's firm under the contract, your conduct should be governed by Section 112.3143(3), Florida Statutes, which provides:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one- acre, one-vote basis is not prohibited from voting.

We generally have advised that a public official would be presented with a voting conflict of interest within the terms of this provision with respect to measures affecting the construction company (CEO 83-29), the engineering firm (CEO 80-84), or the accounting firm (CEO 80-6) of the official's spouse. Therefore, it appears that you would be required to abstain from voting on matters affecting your husband's firm under the contract with the County.

Accordingly, we find that no prohibited conflict of interest would be created under the circumstances presented were you to serve as a County Commissioner while your husband's firm has contracted to provide consulting engineering services for the County.

QUESTION 2:

Would a prohibited conflict of interest be created were you to serve as a county commissioner if your spouse's engineering and surveying firm were to be a subcontractor of an architectural firm in connection with a contract between the architectural firm and the county?

This question is answered in the negative.

You also inquire whether, if you are elected to the County Commission, your husband's firm may be a subcontractor of an architectural firm with which the County may contract under the Consultants' Competitive Negotiation Act (Section 287.055, Florida Statutes). In a telephone conversation with our staff, your attorney explained that it is common for architectural firms when making a presentation to a governmental agency under the Negotiation Act to list the various subcontractors which would be employed by the firm in the event the firm is hired by the agency.

Section 112.313(3), Florida Statutes, quoted above in our response to your first question, also prohibits a public officer acting in an official capacity from indirectly purchasing any services for the officer's agency from a business entity of which the officer's spouse is an officer or owns more than a five percent interest. However, in several previous opinions we have construed the term "indirectly" not to include goods or services provided by a subcontractor or wholesaler.

In CEO 76-213 we advised that Section 112.313(3) would not prohibit a security agency owned by the spouse of a city councilman from contracting with a general contractor to provide security guards at the construction site of a city building. In an opinion which is even more analogous to the present situation, CEO 78-83, we advised that a construction company owned by the children of an aviation authority member could subcontract on an authority project. Additionally, in CEO 78-43 we advised that Section 112.313(3) would not prohibit the wholesale gasoline company of a county sheriff from selling to service stations which sold gasoline to the sheriff's department.

We are of the opinion also that you apparently would be required to abstain from voting under Section 112.3143(3), Florida Statutes, to select an architectural firm if that firm represented that your husband's firm would be a subcontractor in the event the County hired the architectural firm. In the context of a voting conflict of interest, we perceive no distinction between the situations presented in your first and second questions.

Accordingly, we find that no prohibited conflict of interest would be created were you to serve as a County Commissioner if your husband's firm were to be a subcontractor of an architectural firm in connection with a contract between the architectural firm and the County.