CEO 95-34 -- December 1, 1995

CONFLICT OF INTEREST

COUNTY COMMISSIONER BIDDING ON

TREE-TRIMMING CONTRACT WITH COUNTY

To: Mr. Walter B. Olliff, Jr., Member, Hardee County Board of County Commissioners

SUMMARY:

In order to satisfy the requirements of Section 112.313(12)(b), Florida Statutes, the competitive bidding exemption, a public officer interested in bidding on business with his own agency must disclose his interest prior to or at the time he submits his bid using Commission on Ethics Form 3A, Interest in Competitive Bid for Public Business. A public officer's annual filing of financial disclosure, in this case through CE Form 6, Full and Public Disclosure of Financial Interests, does not fulfill the statutory requirement of Section 112.313(12)(b), Florida Statutes.

QUESTION:

In seeking to do business with your agency through a sealed bid process, does the filing of CE Form 6, Full and Public Disclosure of Financial Interests, satisfy the requirement of Section 112.313(12)(b)3, Florida Statutes, regarding the disclosure of a public officer's interest in a competitive bid with his own agency?

Your question is answered in the negative.

Through your letter of inquiry we are advised that you serve as a member of the Hardee County Board of County Commissioners and that you also own and operate a land clearing business. Among the services your business performs is the trimming of trees. In August 1995 the County advertised for sealed bids for tree trimming services, and you submitted a sealed bid proposal in response to the County's solicitation. The bids subsequently were opened and, you relate, your bid was the lowest bid received.

Further, you advise that neither you, your spouse, nor any child of yours participated in the determination of bid specifications or in the determination of lowest or best bidder. Nor did you, your spouse, or any child use or attempt to use your influence to persuade the County to enter into a contract with your company for tree trimming services. In June 1995, you filed your CE Form 6, Full and Public Disclosure of Financial Interests, with the Hardee County Supervisor of Elections. Although you did not file the CE Form 3A, Interest in Competitive Bid for Public Business, prior to or at the time you submitted your bid for the tree trimming contract, you question whether your filing of the CE Form 6 satisfies the disclosure requirements contained in the competitive bid exemption.

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 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.

(d) Beginning public employment.

However, the Code of Ethics also provides an exception to this prohibition where:

The business is awarded under a system of sealed, competitive bidding to the lowest or best bidder and:

1. The official or his spouse or child has in no way participated in the determination of bid specifications or the determination of the lowest or best bidder;

2. The official or his spouse or child has in no way used or attempted to use his influence to persuade the agency or any personnel thereof to enter such a contract other than by the mere submission of the bid; and

3. The official, prior to or at the time of the submission of the bid, has filed a statement with the Department of State, if he is a state officer or employee, or with the supervisor of elections of the county in which the agency has its principal office, if he is an officer or employee of a political subdivision, disclosing his interest, or the interest of his spouse or child, and the nature of the intended business.

In our view, filing the CE Form 6, Full and Public Disclosure of Financial Interests, does not satisfy the requirements of Section 112.313(12)(b)3, Florida Statutes. Section 112.3147, Florida Statutes, provides that

all information required to be furnished by ss. 112.313, 112.3143, 112.3145, 112.3148, and 112.3149 and by s. 8, Art. II of the State Constitution shall be on forms prescribed by the Commission on Ethics.

The form that we have duly promulgated by rule to fulfill the requirements of Section 112.313(12)(b), Florida Statutes, is specifically tailored to inform the public of one's interest in competing for public business with one's agency. It is filed prior to or concurrently with the bid's submission, which has the effect of linking one's interest in the award to the process at hand. It would be filed, in your case, with the Hardee County Supervisor of Elections' Office. We cannot agree that CE Form 6 fulfills the requirements for this disclosure. That form is required to be filed on an annual basis with the Department of State in Tallahassee. The information it contains is of a general nature, and it does not disclose one's particular interest in doing business with one's agency. Nor would the timing of the filing of CE Form 6, or the fact that it is required to be filed in Tallahassee and not locally, adequately disclose to the public the public officer's desire to contract with his own agency.

You have pointed out that in an analogous opinion, CEO 85-84, involving a county commissioner bidding to sell meat to the county for use in its criminal justice facility, we stated: "Please note that the disclosure required by this provision should be made on Commission on Ethics Form 3A, Interest in Competitive Bid for Public Business." You interpret this language as advisory rather than mandatory. Notwithstanding, we note that the language in Section 112.3147, Florida Statutes, quoted above, uses the mandatory term "shall," and since you did not disclose your interest in bidding on the tree trimming contract by filing CE Form 3A, we therefore conclude that your bid to provide tree trimming services did not comply with the requirements of Section 112.313(12)(b), Florida Statutes.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on November 30, 1995, and RENDERED this 1st day of December, 1995.

__________________________

William J. Rish

Chairman