Title: Opinion File 63-6 thru 63-10
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003220/00001
 Material Information
Title: Opinion File 63-6 thru 63-10
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Buddy Blain's Collections - Opinion File 63-6 thru 63-10
General Note: Box 14, Folder 2 ( Opinion File 1961-1971 - 1961-1971 ), Item 8
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003220
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text
* 4 *

-L( I

Sept srbw ar, 196


Wa. Alftre A MJUSthma
P. 0. s 19a
eestovili*, 11.vt1

3e. Purw ge of Mlerwalrl
ftro Beue"d m mP

Dear Alftred
aPuut to your request, I
athvr matt e
With adefst XegaRds, I am

*a eaoloilag u ept"*amtR a tae


i)owa Q0. Qibb~e

.sl~ *.r ;Ibi Tuh~cr~r


PjccMa&ft jcct.
CPacti-b bfv


September 26, 1963

Re: Southwest Florida Water Management
District Purchase of Materials from
Board Members

Under common law public officers were not permitted to

place themselves in a position where their personal interests

come into conflict, either directly or indirectly with the duty

they owe to the public as such officer (67 C. J. S. 406, 116).

Generally, a public officer, including boards and agencies of which

he is a member, may not transact business with any firm, association,

(. or corporation of which he is a member, stockholder or director.

(see Annotation in 140 A. L. R. 344-361; 1961-1962 A. G. 0. 487)

This rule is also recoginzed by F. S. 839.09 which provides:

"839.09 Boards not to purchase supplies from members
of Boards -- No state or county board or municipal
board or council shall purchase supplies, goods or.
materials for public use from any firm or corporation
in which any member of such board is either directly
or indirectly interested, nor shall any such board
pay for such supplies, goods or materials so purchased.
Any person violating the provisions of this section
shall be punished, upon conviction, by fine not exceeding
five hundred dollars or imprisonment not exceeding one
year; provided, that no member of any board aforesaid
who shall have recorded his vote against such illegal
purchase, or who shall have been absent at the taking
of the vote thereon, shall be convicted of a violation
of this section.

In A.G.O. 051-179 and 051-335, the Attorney General
declared that "the words 'supplies','goods', and 'merchandise'

all appear to be used more or less interchangeably to convey

the meaning of articles having an 'intrinsic value in bulk,

weight or measure'." In opinion 058-324 handed down December 5,

1958, he further observed: "These interpretations clearly indicate

that the statute contemplated purchases of personal property made

by state or county boards or municipal boards or councils from

any firm or corporation in which any member is either directly

or indirectly interested. ." (1957-58 A.G.O. 901)l He advised

the County Commissioners of -Manatee County in 1960 that: "The

spirit of 839.09, supra, is against permitting transactions by

the County Boards with firms in which a member of said board has

a membership even though it might be argued that the transaction

involves only services and therefore does not fall directly

under the provisions of this section."

These opinions of the Attorney General disapproving

transactions between boards and their members are in accord with

the general law. A contract entered into by a board with one

of its own members is void, or at least voidable, even in the

absence of a statutory prohibition. 43 Am. Jur. p. 106, Public

Officers, 299. The general rule is to the effect that the in-

terest of a public officer as a stockholder in a corporation

entering into a contractual relation with the public is a pro-

hibited interest in the transaction within the meaning of




"In holding the indictment to be within the
purview of Section 839.07, we believe this
conclusion effectuates the object of the



statutory provisions in substance prohibiting a public officer
from being interested directly or indirectly in any contract

with the public, and of the common law principle against such

interest, based on public policy, of which such statutory pro-

visions are the concrete expression. (43 Am. Jur. p. 107, Public

Officers, S300, 1955-1956 A.G.O. 258)

In State v. Hooten (1960 Fla. App.) 122 So. 2d 336,

the 2nd District Court of Appeals upheld an indictment charging

a misdemeanor under Section 839.07 F.S. which condemns in general

terms a conflict of interest existing in situations where an

officer is in any way interested in a contract for the performance

of any public work. In that.case, where a county commissioner

was charged with the misdemeanor of selling land in which he had

an interest to Lake County for use as a County Barn site the

Court approved a rule that seems to treat the officer as bearing

a trust relation to the public and subject to the principle that

"the law does not permit a trustee or an agent to make contracts

with himself regarding the property committed to his charge."

(Lainhart v. Burr, 4- -la. 315, 78 So. 711; 1961-1962 A.G.O. 487)

In the Hooten opinion the Court declared:

"Unquestionably the rule is that penal
statutes must be strictly construed. At
the same time, however, they are not to
be construed so strictly as to emasculate
the statutes and obvious intent of the
legislature. Haworth v. Chapman, 1933,
113, Fla. 591, 152, So. 663.


' I statute and serves as a remedy to prevent
evil which could arise in the absence of a
penal provision. This interpretation is
consonant with the legislative intent to
preclude a public officer from the misuse
of the powers of his office for his own
profit, to prevent influenced decisions,
and to effectuate the advancement and pro-
tection of the public good, which, in the
final analysis, constitutes the basic under-
lying purpose of the statute." 122 So. 2nd
pages 339-340.
In reaching this conclusion in the Hooten case, the
District Court of Appeal relied heavily on two earlier civil
cases where the Supreme Court of Florida interpreted F. S.

839.07 as prohibiting the sale to a city of real property owned
by a city commissioner or in which a city commissioner ha& an
interest. In Town of Boca Raton v. Raulerson 1933, 108 Fla.

- 376, 146 So. 576, the Court held that the sale to the city of
property owned by the city commissioner was viod under 839.07,

supra. In City of Stuart v. Green, 1945, 156 Fla. 551, 23 So.
2d 831, the Court reaffirmed their position regarding such a
transaction and further held that a stockholder of a cozooration
which sells the property, comes within the meaning of the act
if such stockholder is an elected official of the city.

In view of the above-styled cases, commentaries, and
opinions,it would appear that the Southwest Florida Management
District governing board would be prohibited from purchasing
supplies, goods or materials from a board member. Such a
transaction would be contrary to the declared public policy of the
state as set forth in Chapter 839, F. S. and necessarily void.


University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs