AGO 88-31

Attorney General of Florida — Opinion
August 2, 1988

Competitive bidding and supervisor of elections

Robert A. Butterworth Attorney General

The Honorable Helen B. Gienau Supervisor of Elections Polk County Post Office Box 1460 Bartow, Florida 33830-1460

Dear Ms. Gienau:

You ask the following question:

Are the provisions of Part I, Ch. 287, F.S., relating to competitive bidding, applicable to a supervisor of elections?

In sum, I am of the opinion that:

The provisions of Part I, Ch. 287, F.S., with the exception of s. 287.055, F.S., the Consultants’ Competitive Negotiation Act, do not apply to a supervisor of elections.

You state that you are aware of AGO 84-24 in which this office stated that ss. 287.001-287.052, F.S., the State Purchasing Law, were not applicable to local constitutional officers such as the supervisor of elections. However, you state that your auditor has informed you that “inasmuch as the county processes bids for [the supervisor of elections] and pays [the supervisor’s] accounts,” you, as supervisor of elections, do not come under the opinion.

Section 287.012(1), F.S., defines “Agency” for purposes of Part I, Ch. 287, F.S., with the exception of s. 287.055, F.S.,[1] as

any of the various state officers, departments, boards, commissions, divisions, bureaus, and councils and any other unit of organization, however designated, of the executive branch of state government. (e.s.)

Part I, Ch. 287, F.S., was brought into the statutes by s. 22, Ch. 69-106, Laws of Florida. As indicated by its title, Ch. 69-106 is an act relating to the executive branch of government. Its purpose was to restructure the executive branch of government and to consolidate and reorganize existing state agencies pursuant to the mandate of s. 6, Art. IV, State Const.[2]

This office has previously stated that “the agencies covered by the state purchasing laws are those agencies within the executive branch of state government. To be subject to the purchasing requirements of Ch. 287, F.S., an entity would have to be assigned within the executive branch of government by Ch. 20, F.S. . . . or a later enactment.”[3] (e.s.)

A supervisor of elections is a county constitutional officer.[4]
The supervisor of elections as a county officer is not a state agency and thus is not subject to the competitive bidding requirements contained in Part I of Ch. 287 (except s. 287.055, F.S.).[5] While s. 287.042, F.S., authorizes a county, municipality, or other local public agency, to utilize the state purchasing agreements,[6] such local governmental entities are not required to comply with the provisions of Part I. I am not aware of any statutory provision which requires the supervisor of elections, or any other county officer, to submit to competitive bidding in purchasing materials, equipment, and supplies.

While your letter states that the county processes bids for you and pays your accounts, such actions by the county do not make you (or the county) a state agency for purposes of Part I, Ch. 287, F.S. Accordingly, I am of the opinion that the conclusions reached in AGO 84-24 are applicable to you, as supervisor of elections.

Counties may now provide by ordinance the procedures to be used in that county for purchasing commodities or may deal with each purchase or contract on an individual basis, with or without competitive bidding, as may best serve the public interest.[7]
However, supervisors of elections are statutorily guaranteed their independence from the counties in making purchases. Section 129.202(2), F.S., provides:

The independence of the supervisor of elections shall be preserved concerning the purchase of supplies and equipment; the selection of personnel. . . .[8]

In AGO 78-122, this office considered that similar language contained in s. 30.53, F.S., providing for the sheriffs’ independence. This office stated that to require the sheriff to submit his needs to the board of county commissioners for competitive bids “would effectively take away his purchasing power and place it back in the board of county commissioners.” Thus, this office concluded that the sheriffs were not required to take competitive bids in purchasing goods, supplies and equipment.[9]

The independence of the supervisor of elections to make his own purchases for his office is also statutorily guaranteed. I am, therefore, of the opinion that the provisions of Part I, Ch. 287, F.S. (except s. 287.055, F.S.), are not applicable to the supervisor of elections.

Sincerely,

Robert A. Butterworth Attorney General

RAB/tjw