CEO 83-10 -- March 10, 1983

CONFLICT OF INTEREST

DIRECTOR OF DIVISION OF PUBLIC SCHOOLS OF DEPARTMENT OF EDUCATION FORMING CORPORATION TO DEVELOP AND SELL PUBLICATIONS CONCERNING PUBLIC EDUCATION

To: Mr. Carey E. Ferrell, Jr., Director of Division of Public Schools, Florida Department of Education

SUMMARY:

No prohibited conflict of interest would be created were the Director of the Division of Public Schools to participate in the formation of a corporation which would develop, copyright, and market professional materials to the general public. Sections 112.313(3) and (7)(a), Florida Statutes, would prohibit sales to the Division of Public Schools, except as made pursuant to one of the exemptions of Section 112.313(12), Florida Statutes. Because of the authority of the Division of Public Schools over school districts and public schools, a continuing or frequently recurring conflict of interest as prohibited by Section 112.313(7)(a) would be created were the corporation to sell to those education agencies.

QUESTION:

Would a prohibited conflict of interest be created were you, the Director of the Division of Public Schools, Department of Education, to participate in the formation of a corporation which would develop, copyright, and market professional materials to the general public and to public education agencies?

Your question is answered in the negative, subject to the exceptions noted below.

In your letter of inquiry you advise that you are employed as the Director of the Division of Public Schools of the Department of Education. In this position, you are responsible for providing overall direction and coordination of all efforts and responsibilities at the State level for administration, operation, and supervision of the public school sector of the State system of education.

In addition, you advise that you are considering participating in the formation of a corporation which would develop, copyright, and sell various types of publications dealing with issues or topics affecting public education. You would own a material interest in the corporation, you advise. These publications ultimately would include newsletters, journals, and professional books and materials authored by you and by other persons working under contract. All publications would be offered for sale to the general public; however, the target audience would be persons employed in public education systems or persons preparing for entry into such employment. As a result, the source of funds for subscriptions or purchases might come from public school internal funds or from public funds of school districts, community colleges, or state universities.

You advise that most of the information utilized in such publications would be gathered or obtained from sources not directly connected with your employment or position. Any information gained through your position and used for publication would be limited to official public records, such as published statistical reports, official correspondence, Attorney General opinions, PERC orders, DOAH orders, judicial decisions, and the like.

In a conversation with our staff, you advised that you particularly contemplate writing and publishing biennially a handbook on Florida public school law written in a non legal manner for education students, teachers, and administrators. The book would be based upon an outline which you formerly used when teaching a course at a State university on the legal aspects of education. In addition, you advised that it is possible that in the future your corporation might publish a newsletter and other materials of particular interest to the education community of Florida. You advised that you anticipate that you would market the books and materials published by the corporation through word-of-mouth, advertisements in education-related journals, and solicitations through educational groups in Florida, without direct appeals by you to educational institutions or agencies. Finally, you advised that you have encouraged the Department of Education to publish similar materials, but that the Department has not been able to obtain funding from the Legislature for such publications.

The Code of Ethics for Public Officers and Employees 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. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a)October 1, 1975.

(b)Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1981).]

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), Florida Statutes (1981).]

Section 112.313(3) prohibits you from owning a material interest in a corporation which is selling any goods or services to your agency, the Division of Public Schools of the Department of Education (as the term "agency" is defined in Section 112.312(2), Florida Statutes). Similarly, Section 112.313(7)(a), prohibits you from having a contractual relationship with a business entity which is doing business with your agency.

These general prohibitions are subject to the exemptions contained in Section 112.313(12), Florida Statutes, most of which would appear not to apply to the situation you have described. The most applicable exemption would appear to be Section 112.313(12)(f), Florida Statutes, which provides an exemption where the total amount of the subject transaction does not exceed $500. In previous opinions, we have interpreted this exemption to be limited to a single transaction of an amount not exceeding $500 or to a series of transactions totaling not more than $500 within any calendar or fiscal year. See, for example, CEO 77-182.

We do not find that the prohibitions of Sections 112.313(3) and (7)(a) would prevent your corporation from selling materials to the general public, that is, to persons who would purchase the materials from private rather than public funds. Nor do we find that any other provision of the Code of Ethics would prohibit your corporation from selling the books and materials you contemplate publishing to the general public. In particular, Section 112.313(8), Florida Statutes, provides:

DISCLOSURE OR USE OF CERTAIN INFORMATION. -- No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity.

We note that you have stated that any information gained through your position and used for publication would be limited to official public records. Similarly, in CEO 82-66, we advised that this provision would not prohibit a county property appraiser from participating for a fee in an informal seminar regarding the appraisal of property. In addition, your situation would not involve the sale of materials developed by the Department as was the case in CEO 80-21 and CEO 81-54.

As to whether your corporation may sell materials to public education agencies other than the Division of Public Schools, we observe again that your "agency" for purposes of the Code of Ethics is that Division of the Department of Education. The Division of Public Schools' responsibilities concern the public schools of the various school districts, rather than, for example, community colleges and State universities, which are the concern of the Division of Community Colleges and the Division of Universities. Section 20.15, Florida Statutes. Therefore, we do not perceive any conflict of interest in your corporation selling to public education agencies other than the school districts and public schools of the State.

However, we are of the opinion that your relationship to the corporation would result in a continuing or frequently recurring conflict of interest in violation of Section 112.313(7)(a), above, if your corporation were to sell its publications to school districts or public schools. Your position description as Director of the Division of Public Schools indicates that the Division plays a substantial role in the exercise of the State's authority over public schools and school districts. For examples, the Division is involved in approving school systems' budgets, in performance audits of the school districts, in student transportation, and in State funding of and grants to school districts. Given these responsibilities and the extent of the relationship between the Division and the various school districts, we conclude that if permitted to sell to the school districts or public schools, you would be placed in a situation in which regard for your private interest in selling publications of the corporation would tend on a continuing or frequently recurring basis to lead to disregard of your public duty to administer the programs and activities of the Division fairly and impartially.

Accordingly, we find that no prohibited conflict of interest would be created were you to participate in the formation of corporation which would develop, copyright, and market professional materials to the general public and to public education agencies other than the Division of Public Schools and the various school districts and public schools of this State. As to the Division of Public Schools, the corporation may sell materials to the extent of no more than $500 per calendar or fiscal year.