CEO 82-26 -- April 8, 1982

CONFLICT OF INTEREST

DEPARTMENT OF EDUCATION EMPLOYEE CONSULTING WITH CORPORATION DOING BUSINESS WITH DEPARTMENT

To: (Name withheld at the person's request.)

SUMMARY:

A prohibited conflict of interest would be created were an employee of the Department of Education, Student Assessment Section, to enter into a consulting contract with a corporation which has contracted with the Student Assessment Section for the statewide assessment of educable mentally handicapped students. Section 112.313(7)(a), Florida Statutes, prohibits a public employee from having contractual relationships with a business entity which is doing business with his agency. The exemption for contracts let by competitive bid [Section 112.313(12)(b), Florida Statutes] would not apply here as the employee was responsible for the development of requests for proposals for the project awarded to the corporation.

QUESTION:

Would a prohibited conflict of interest be created were you, an employee of the Department of Education in its Student Assessment Section, to enter into a consulting contract with a corporation which has contracted with the Student Assessment Section for the statewide assessment of educable mentally handicapped students?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you are employed in the Student Assessment Section of the Florida Department of Education. You also advise that you have been offered a part-time consulting position with a Florida corporation which currently is developing a contract with another state to assist it in preparing a statewide assessment program. As part of that project, the corporation will assist in planning methodology to test handicapped students, as well as regular students. You have been asked to work with the corporation on a short-term basis to assist its personnel in developing handicapped student testing.

You also advise that the corporation currently has a contract with the Student Assessment Section for the operational phase of the statewide assessment of educable mentally handicapped students. You were responsible for the development of the request for proposals for this project, you advise, and you have been assigned to monitor the ongoing project. The corporation was awarded the project by decision of a Department committee, based upon competitive low bidding among several offerers. Finally, you advise that the corporation previously has handled a number of contracts with the Department, both with the Student Assessment Section and with several other program offices.

The Code of Ethics for Public Officers and Employees provides in relevant part:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), F. S.]

This provision prohibits a public employee from having a contractual relationship with a business entity which is doing business with his agency. The term "agency" is defined in Section 112.312(2), Florida Statutes, to include any department, division, or bureau of a state agency. In a telephone conversation with our staff, you advised that the Student Assessment Section is part of the Bureau of Program Support Services within the Division of Public Schools of the Department of Education. Therefore, we find that your "agency" is the Bureau of Program Support Services. As the corporation for which you propose to consult is doing business with your agency, you are prohibited from having any employment or contractual relationship with that corporation.

There are a number of exemptions to Section 112.313(7) contained in Section 112.313(12), Florida Statutes, including one where:

(b) 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 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 Clerk of the Circuit Court of the county in which the agency has its principal office, if he is an officer or employee of a political subdivision, disclosing his, or his spouse's or child's, interest and the nature of the intended business.

However, although you have indicated that the contract between the corporation and the Student Assessment Section was awarded by competitive bid, it appears that your situation does not come within the terms of the above exemption. In particular, that exemption requires that the public official must have in no way participated in the determination of the bid specifications or the determination of the lowest or best bidder. In this respect, you have advised that you are responsible for the development of the requests for proposals for the project awarded to the corporation.

Accordingly, we find that a prohibited conflict of interest would be created were you to enter into a consulting contract with a corporation which has contracted with the Student Assessment Section. We are unable in an advisory opinion to prescribe the conditions under which you may engage in private consultations beyond referring you to the terms of the Code of Ethics for Public Officers and Employees. For this reason we are enclosing a copy of the Code of Ethics for your information. You may also find prior advisory opinions of this Commission to be of assistance in this regard. These opinions are available in hard-bound volumes at cost through our office. An order form is enclosed for your convenience should you wish to purchase these opinions.