CEO 77-125 -- August 24, 1977
CONFLICT OF INTEREST
SCHOOL DISTRICT DIRECTOR OF CURRICULUM OWNER OF ATHLETIC SUPPLY COMPANY SELLING TO SCHOOLS IN DISTRICT. APPLICABILITY OF FINANCIAL DISCLOSURE LAW TO SCHOOL DISTRICT CURRICULUM DIRECTOR
To: (Name withheld at the person's request.)
A curriculum director for a school district who does not have the authority to make any purchase exceeding $100 for the district does not meet the definition of "local officer" contained in s. 112.3145(1)(a)3., F. S., and accordingly is not subject to the financial disclosure provisions contained in part III, Ch. 112, F. S.
A curriculum director for a school district who plans to purchase an athletic supply company which does business with various schools in the district would not create a conflict of interest prohibited by s. 112.313(3), F. S., prohibiting a public employee from owning a material interest in a business entity which does business with his public agency, so long as the conditions specified in Ch. 77-349, Laws of Florida, are met. This law, passed by the 1977 Legislature and providing certain exceptions to the prohibitions contained in s. 112.313(3) and (7), provides in part that no violation exists where the "business entity involved is the only source of supply within the political subdivision of the officer or employee, and there is full disclosure of the officer's or employee's interest in the business entity to the governing body of the political subdivision . . . ." As the subject athletic supply company is the only such source of supply, no violation would be created in the proposed purchase provided the required disclosure is made to the school district.
1. Is a director of curriculum for a district school board a "local officer" for purposes of filing financial disclosure?
2. Would a prohibited conflict of interest be created were the director of curriculum of a district school board to purchase an athletic supply company which does business with various schools in the district?
Question 1 is answered in the negative.
In your letter of inquiry you have stated that ____ is employed as director of curriculum for the Sumter County School Board. You have also stated that she is not a purchasing agent; nor do any purchases made by the various schools go through the office in which she works.
The Code of Ethics for Public Officers and Employees provides that each "local officer" must file financial disclosure annually. That term is defined to include:
Any person holding one or more of the following positions, by whatever title, including persons appointed to act directly in such capacity, but excluding assistants and deputies unless specifically named herein: clerk of the circuit court; clerk of the county court; county or city manager; political subdivision chief; county or city administrator; county or city attorney; chief county or city building inspector; county or city water resources coordinator; county or city pollution control director; county or city environmental control director; county or city administrator, with power to grant or deny a land development permit; chief of police; fire chief; city or town clerk; district school superintendent; community college presidents; or a purchasing agent having the authority to make any purchase exceeding $100 for any political subdivision of the state or any entity thereof. [Section 112.3145(1)(a)3., F. S. 1975.]
Therefore, so long as the subject school board employee does not have the authority to make any purchase exceeding $100 for the school district, she is not a "local officer" and accordingly is not subject to the annual filing of financial disclosure.
Question 2 is answered in the negative, subject to conditions specified in this opinion.
In your letter of inquiry you have stated that the subject school district employee and her husband wish to purchase a retail athletic supply company. Various schools in the district purchase athletic supplies from this company, and the subject employee and her husband feel that they would have to continue selling to these schools if the business is to be successful. Again, you have stated that the subject employee is not a purchasing agent; nor do any purchases made by the various schools go through the office in which she works. In her position as curriculum director, she has no authority or jurisdiction over the athletic programs in any of the schools of the district.
The Code of Ethics 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 . . . . [Section 112.313(3), F. S. 1975.]
This provision prohibits a public employee acting in a private capacity from selling any goods to a political subdivision or any agency thereof, if she is serving as an employee of that political subdivision. In our view one who owns a material interest in (more than 5 percent of) a business acts in his private capacity to sell when that business sells. See CEO 75-196. The district school board constitutes a political subdivision pursuant to s. 230.01, F. S. 1975, and each public school within that district is a separate agency for purposes of the Code of Ethics. Section 112.312(2), F. S. (1976 Supp.). Therefore, the subject school district employee seemingly is prohibited from selling goods to the school board which employs her or to any school within that district.
However, Ch. 77- 349, Laws of Florida, amends s. 112.313 and creates several limited exemptions to the general prohibition contained in s. 112.313(3), above. Section 1 of that chapter provides an exemption where:
The business entity involved is the only source of supply within the political subdivision of the officer or employee, and there is full disclosure of the officer's or employee's interest in the business entity to the governing body of the political subdivision . . . .
In a telephone conversation with our staff, you advised that the athletic supply company in question is the only retail outlet for athletic supplies in the county, which is the geographic area encompassed by the school district, and that even the hardware stores in the county do not carry the types of athletic equipment required by the schools.
Accordingly, so long as the subject school district employee makes full disclosure of her interest in the business entity as provided in Ch. 77-349, above, and so long as her store remains the only retail outlet for athletic supplies in the county, we find that the Code of Ethics for Public Officers and Employees does not prohibit her from purchasing an athletic supply company which does business with various schools in the district.