Procurement Policy - Chapter 12: Ethics in Public Contracting

§12-201 Statement of Policy

Public employment is a public trust. It is the policy of the County to promote and balance the objective of protecting government integrity and the objective of facilitating the recruitment and retention of personnel needed by the County. Such policy is implemented by prescribing essential standards of ethical conduct without creating unnecessary obstacles to entering public service. Public employees must discharge their duties impartially to assure fair competitive access to governmental procurement by responsible contractors. Moreover, they should conduct themselves in such a manner as to foster public confidence in the integrity of the County and the manner in which goods and services are procured. To achieve the purpose of this section, it is essential that those doing business with the County also observe the ethical standards prescribed herein. The code of ethics for public officers and employees and the penalties for violation thereof as provided by general law (Ch. 112, Fla. Stat.); Hillsborough County Code of Ordinances and Laws, Part A, Chapter 2, Article VIII, entitled “Code of Ethics for Public Officers and Employees” (“Code of Ethics Ordinance”) and Hillsborough County Administrator Policy Manual, Policy No. 1.6; or more restrictive as provided in this Policy, if any, shall be applicable to all public officers and employees of the County.

§12-202 General Standards of Ethical Conduct

(1) General Ethical Standards for Employees
Any attempt to realize personal gain through public employment by conduct inconsistent with the proper discharge of an employee’s duties is a breach of a public trust.

(2) General Ethical Standards for Non-Employees
Any effort to influence any public employee to breach the standards of ethical conduct set forth in this section is also a breach of ethical standards.

§12-203 Criminal Sanctions

To the extent that violations of the ethical standards of conduct set forth in this Section constitute violations of law, they shall be punishable as provided therein. Such sanctions shall be in addition to any and all civil remedies that apply and are available to the County.

§12-204 Employee Conflict of Interest

(1) Conflict of Interest
It shall be a breach of ethical standards for any employee to participate directly or indirectly in a procurement when the employee knows that:

• (a) The employee or any member of the employee's immediate family has a financial interest pertaining to the procurement;
• (b) A business or organization in which the employee, or any member of the employee's immediate family, has a financial interest pertaining to the procurement; or
• (c) Any other person, business, or organization with whom the employee or any member of the employee's immediate family is negotiating or has an arrangement concerning prospective employment is involved in the procurement.

(2) Financial Interest in a Blind Trust
Where an employee or any member of the employee's immediate family holds a financial interest in a blind trust, the employee shall not be deemed to have a conflict of interest regarding matters pertaining to that financial interest, provided that disclosure of the existence of a blind trust has been properly disclosed in accordance with general law and made to the Director of Procurement.

(3) Discovery of Actual or Potential Conflict of Interest and Disqualification
Upon discovery of an actual or potential conflict of interest, an employee shall promptly file a written statement of disqualification with the Director of Procurement and shall withdraw from further participation in the transaction involved.

§12-205 Employee Disclosure Requirements

(1) Disclosure of Benefit Received from Contract
Any employee who has, or obtains any benefit from, any County contract with a business in which the employee has a financial interest shall report such benefit to the Director of Procurement; provided, however, this Section shall not apply to a contract with a business where the employee's interest in the business has been placed in a disclosed blind trust.

(2) Failure to Disclose Benefit Received
Any employee who knows or should have known of such benefit and fails to report such benefit to the Director of Procurement, is in breach of the ethical standards of this Section.

§12-206 Gratuities and Kickbacks

(1) Gratuities
It shall be a breach of ethical standards for any person to offer, give, or agree to give any employee or former employee, or for any employee or former employee to solicit, demand, accept, or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation of any part of a program requirement or a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to any program requirement or a contract or subcontract, or to any solicitation or proposal therefor.

(2) Kickbacks
It shall be a breach of ethical standards for any payment, gratuity, or offer of employment to be made by or on behalf of a subcontractor under a contract to the prime contractor or higher tier subcontractor or any person associated therewith, as an inducement for the award of a subcontract or order.

(3) Contract Clause
The prohibition against gratuities and kickbacks prescribed in this Section shall be conspicuously set forth in every contract and solicitation.

§12-207 Prohibition Against Contingent Fees

(1) Contingent Fees
It shall be a breach of ethical standards for a person to be retained, or to retain a person, to solicit or secure a County contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, except for retention of bona fide employees or bona fide established commercial selling agencies for the purpose of securing business.

(2) Representation of Contractor
Every person, before being awarded a County contract, shall represent, in writing, that such person has not retained anyone in violation of Subsection (1) of this Section. Failure to do so constitutes a breach of ethical standards.

(3) Contract Clause
The representation prescribed in Subsection (2) of this Section shall be conspicuously set forth in every contract and solicitation.

§12-208 Restrictions on Present and Former Employees

(1) Contemporaneous Employment Prohibited
Pursuant to the Code of Ethics Ordinance, employees of the Office of the County Administrator are prohibited from having any direct or indirect outside business interest, financial or otherwise, engaging in any business transaction, engaging in any professional activity, including outside employment, or incurring any obligation of any nature that conflicts with the employee's job duties and/or the business of the employee's assigned department. Further, employees of the County Administrator are specifically prohibited from renting, leasing, or selling any realty, goods, or services to the County, having or holding any employment or contractual relationship with any business entity which is subject to the regulation of, or is doing business with the County, or having or holding any employment or contractual relationship that will create a continuing or frequently recurring conflict between the employee's private interests and the performance of the employee's official public duties or that would impede the full and faithful discharge of said official public duties. Employees of the Office of the County Administrator are required to timely disclose all actual or potential conflicts of interest in accordance with the procedures and timelines outlined in the Code of Ethics Ordinance and the County Administrator Policy Manual.

(2) Restriction on Representation of Others by Former Employees
Former employees shall adhere to Sec. 2-766 of the Code of Ethics Ordinance regarding representation of others before the Board of County Commissioners after leaving office or employment with the County.

(3) Restriction Regarding Matters Involving a Present Employee’s Former Employer
It shall be a breach of ethical standards for any new employee, within one (1) year after cessation of employment with a former employer, to participate in a procurement when the former employer is involved as a vendor. In such cases, the new employee shall not serve as an evaluation committee member, generate recommendations, or act as a decision-maker when the former employer is involved.

§12-209 Use of Confidential Information

It shall be a breach of ethical standards for any employee or former employee knowingly to use confidential information for actual or anticipated personal gain, or for the actual or anticipated personal gain of any other person.

§12-301 Civil and Administrative Remedies Against Employees Who Breach Ethical Standards

(1) Existing Remedies Not Impaired
Civil and administrative remedies against employees which are in existence on the effective date of this Policy shall not be impaired.

(2) Supplemental Remedies
In addition to existing remedies for breach of the ethical standards prescribed in this Policy or procedures promulgated thereunder, the County Administrator may impose any one or more of the following in accordance with the County’s Human Resources Policies and Procedures:

• (a) Area-of-Concerns Memoranda, up to and including written reprimands.
• (b) For recurring or severe infractions, pre-disciplinary hearing resulting in suspension, demotion, or termination of employment.

(3) Right to Recovery from Employee Value Received in Breach of Ethical Standards
The value of anything received by an employee in breach of the ethical standards prescribed in this Policy or procedures promulgated thereunder shall be recoverable by the County as provided in §12-303 (Recovery of Value Transferred or Received in Breach of Ethical Standards).

(4) Due Process
All procedures under this Section shall be in accordance with due process requirements and existing law. In addition, notice and an opportunity for a hearing shall be provided prior to imposition of any suspension, demotion, or termination of employment.

§12-302 Civil and Administrative Remedies Against Non-Employees Who Breach Ethical Standards

(1) Existing Remedies Not Impaired
Civil and administrative remedies against non-employees which are in existence on the effective date of this Policy shall not be impaired.

(2) Supplemental Remedies
In addition to existing remedies for breach of the ethical standards prescribed in this Policy or procedures promulgated thereunder, the Director of Procurement may impose any one or more of the following:

• (a) Written warnings or reprimands;
• (b) Termination of transactions; and
• (c) Debarment or suspension from being a contractor or subcontractor under County contracts.

(3) Right to Recovery from Non-Employee Value Transferred in Breach of Ethical Standards
The value of anything transferred in breach of the ethical standards of this Section or procedures promulgated hereunder by a non-employee shall be recoverable by the County as provided in §12-303 (Recovery of Value Transferred or Received in Breach of Ethical Standards).

(4) Right of the County to Debar or Suspend
Debarment or suspension may be imposed by the Director of Procurement in accordance with the procedures set forth in §9-102 (Authority to Debar or Suspend) for breach of the ethical standards of this Section, provided that such action may not be taken without the concurrence of the County Attorney.

(5) Due Process
All procedures under this Section shall be in accordance with due process requirements, including, but not limited to, a right to notice and an opportunity for a hearing prior to imposition of any termination, debarment, or suspension from being a contractor or subcontractor under a County contract.

§12-303 Recovery of Value Transferred or Received in Breach of Ethical Standards

(1) General Provisions
The value of anything transferred or received in breach of the ethical standards of this Section or procedures promulgated hereunder by an employee or a non-employee may be recovered from both the employee and non-employee.

(2) Recovery of Kickbacks by the County
Upon a showing that a subcontractor made a kickback to a prime contractor or a higher tier subcontractor in connection with the award of a subcontract or order thereunder, it shall be conclusively presumed that the amount thereof was included in the price of the subcontract or order and ultimately borne by the County and will be recoverable hereunder from the recipient. In addition, said value may also be recovered from the subcontractor making such kickbacks. Recovery from one offending party shall not preclude recovery from other offending parties.