CEO 89-3 -- January 18, 1989

CONFLICT OF INTEREST

SCHOOL DISTRICT EMPLOYEE EMPLOYED

TO FILM FOOTBALL GAMES IN DISTRICT SCHOOLS

To: Mr. David Brooks Kundin, Attorney (Tallahassee)

SUMMARY:

No prohibited conflict of interest exists under Sections 112.313(3) and (7), Florida Statutes, where a school district employee who also owns a private filming business is employed by schools in the same district to film football games, at the rate of $275 per game. Section 112.313(12)(f), Florida Statutes, exempts transactions which do not exceed $500.00. CEO's 76-172, 82-85, and 86-80 are referenced.

QUESTION:

Is a prohibited conflict of interest created where a teacher who is employed by a school district and who also owns a filming business is employed to film football games by schools in the same district at the rate of $275 per game?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. Peter Straube is employed by the Volusia County School District. He is a high school teacher whose permanent position is as a Media Specialist. In August of 1988 he was elected to serve a one-year term as President of the local teachers' union. During his term as President, he remains an employee of the School District but is released from normal teaching duties. His salary and benefits are paid by the School District, but the union reimburses the District for the time he spends on union business.

You also advise that the subject employee is owner and operator of a film service company and has been filming games for various high schools in the area since 1974. The current fee for filming a football game is $275. His company uses its own equipment, hires cameramen to film games, has liability insurance, and provides the game films to coaches each week during football season. All of the filming of games takes place at night and on weekends. None of the company's business is conducted during school hours.

In a telephone conversation you stated that the employee is hired by the individual schools within the District. He is paid $275 after each game, not a lump sum at the end of the year by the school. You state that the School District, after fourteen years of using the company, now has determined that Section 112.313(3), Florida Statutes, is violated by this activity. You question this conclusion and ask if it is correct.

As the subject employee is currently on leave to serve as Union President, and the School District is reimbursed for his salary by the Union, there may be some question as to whether he is a School District employee. See Wright v. State Commission on Ethics, 389 So. 2d 662 (Fla. 1st DCA 1980). You have informed us, however, that this situation will probably continue after his service as President is completed. Therefore, for purposes of this opinion, he will be considered an employee of the School District.

Section 112.313(3), Florida Statutes, states:

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 of 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.

(d) Beginning public employment

This section prohibits an employee from doing business with his own agency. The subject employee's agency, as "agency" is defined in Section 112.312(2), Florida Statutes, is the high school within the School District which employs him. See e.g. CEO 76-172, CEO 77-63, and CEO 77-109. Section 112.313(3) prohibits him from selling his services to his school or to any school within the District. See CEO 82-85, CEO 78-22, and CEO 76-172.

Section 112.313(3) does not apply to contracts which were entered into prior to October 1, 1975. Although the subject employee has been providing services to schools in the District since 1974, according to the information with which we have been provided there has been no formal contract between him and these schools. He appears to provide services per request. In addition, you have advised that you do not believe there has been a formal contractual relationship with a school which extended as far back as October 1, 1975. Under these circumstances, it does not appear this exception would apply.

Section 112.313(7)(a) also prohibits the subject employee from holding any employment or contractual relationship with a business which is doing business with his agency. That section states:

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.

An "employment or contractual relationship" has been determined in previous opinions to include ownership of a private business. CEO 87-83, CEO 79-16, and CEO 78-93. Therefore, it would appear he could not sell services or films to the school which employs him without additionally violating Section 112.313(7)(a).

Section 112.313(12), Florida Statutes, however, provides for certain exemptions to Section 112.313(7)(a) and (3). If one of these exemptions applies, the described activity would not violate (3) or (7)(a). Section 112.313(12)(f) exempts transactions which do not exceed $500. Although this provision previously was interpreted to mean that no more than $500 could be transacted with any individual or entity during a fiscal year (See CEO 77-182, CEO 82-85, and CEO 85-11), our more recent opinions interpret the $500 limit to apply to a single transaction. See CEO 86-80, CEO 87-41, and CEO 87-30. Since the employee charges $275 per game, this exemption would apply.

Accordingly, we find that no prohibited conflict of interest exists where the subject School District employee films games for schools within the District for less than $500 per game.