CEO 92-28 -- June 5, 1992

CONFLICT OF INTEREST

SCHOOL DIRECTOR AND TEACHER RECEIVING ROYALTIES

FROM SALE OF TEXTBOOKS REQUIRED FOR THEIR COURSES

To: John P. Booth, Assistant General Counsel, Florida Department of Law Enforcement (Tallahassee)

SUMMARY:

No prohibited conflict of interest would be created were the director and a teacher at a criminal justice training school to require the use of textbooks from which they receive a sales royalty. The director and teacher lack the necessary status or role in the business entity selling books to the school for a violation of Section 112.313(3), Florida Statutes, to be present, and the "sole source" exemption of Section 112.313(12)(e), Florida Statutes, is applicable to negate conflicts under Section 112.313(7)(a), Florida Statutes. CEO's 91-58, 91-25, 85-15, 81-27, and 78-24 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were the director of and a teacher at a public criminal justice training school to require the use of textbooks which they authored and from which they receive sales royalties by students taking classes which they teach?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry and accompanying materials, you advise that Ron Kazoroski and Rick Flesch are employed, respectively, as the executive director and a teacher at the Central Florida Criminal Justice Institute (Institute), located in Orlando. You advise further that the Institute is part of the Orange County public school system and is regulated by the Florida Criminal Justice Standards and Training Commission (CJSTC). Both the director and teacher were involved in authoring one textbook each which, you represent, are the only textbooks available which discuss and analyze the self-defense tactics officially approved for Florida law enforcement and correctional officers by the CJSTC. As a result, these two textbooks are used widely at other criminal justice training schools in the State.

Both textbooks are privately published by a Florida publisher. The director and teacher have an agreement with the publisher under which they receive a royalty payment from the publisher for each copy of their book sold. In addition, the director edits a newsletter for the publisher without receiving compensation.

The books would be used by students attending basic recruit courses and by instructors taking instructor-training courses. The recruits would purchase their copies of the books from a private business which sells books and other supplies to Institute students; the instructors would be provided their copies by the Institute, which purchases the books from the publisher using criminal justice trust funds addressed in Section 943.25, Florida Statutes. The director and the teacher have authority to require the use of certain books in their classes, as part of their public duties. The sales from the publisher to the Institute would exceed $500 per calendar year.

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 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 or when such offices are on property wholly or partially owned by the legislator. 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.]

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.]

EXEMPTION.--. . .no person shall be held in violation of subsection (3) or subsection (7) if:

The business entity involved is the only source of supply within the political subdivision of the officer or employee and there is full disclosure by the officer or employee of his interest in the business entity to the governing body of the political subdivision prior to the purchase, rental, sale, leasing, or other business being transacted. [Section 112.313(12)(e), Florida Statutes.]

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes.]

For purposes of this provision, the term "corruptly" is defined as follows:

'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(9), Florida Statutes.]

You have not indicated that the director or teacher have the required relationship to or material interest in the publishing company necessary to present a prohibited conflict of interest under Section 112.313(3). However, by virtue of their receiving book royalty payments from the publisher for books sold to the Institute for use by instructor-training students, they presumptively would be in violation of the first part of Section 112.313(7)(a), Florida Statutes, by having or holding a contractual relationship with a business entity doing business with the Institute--their public agency. Further, there is the potential of a continuing or frequently recurring conflict between their private interests and the performance of their public duties or an impediment to the full and faithful discharge of their public duties under the theory that they would be tempted to use their public positions to select books which would generate private profit for themselves, in violation of the second part of Section 112.313(7)(a). Nevertheless, inasmuch as the facts you present to us for review indicate the possible application of the "sole source" exception to a prohibited conflict, we must go beyond the apparent facial conflict under Section 112.313(7)(a) and view your scenario in light of that exception.

We find the situation you present to be sufficiently analogous to the circumstances of CEO 81-27 and CEO 85-15, in which we opined that the "sole source" exemption was applicable, to negate a prohibited conflict. In CEO 81-27, the company of a school district psychologist sought to sell educational testing materials to the district or schools within the district, where there were no similar materials available on the market from a source other than the psychologist's company. In CEO 85-15, instructors at a State junior college sought to sell a textbook they had prepared to the college and a business entity operating the college's bookstore. Further, our finding here is in accord with the apparent intent of the sole source exemption to alleviate the hardships which otherwise would be imposed by the Code of Ethics upon a political subdivision if an agency were required to forgo some goods or services, or to purchase goods or services at additional cost, in order to avoid creating conflicts of interest for its officers or employees. See CEO 78-24.

We recognize that there have been instances in which we have found the exemption not to apply because the item sought to be obtained for the public agency was not the only item suitable for the agency's purpose but, rather, was one of several items suitable for the agency's use. See, for example, CEO 91-25, in which we found that scotopic screening was not the only source of supply (or only technique) for screening for reading disabilities and providing optometric services available to a school district, and CEO 91-58 in which we found that the textbooks and materials of a particular company were not the only materials available to teach the whole language approach to reading. Here, however, under the facts you present, the textbooks of the director and the teacher are the only books which teach the defensive techniques officially approved by the CJSTC. While it is apparent that there exist myriad "defensive techniques" other than those approved by the CJSTC, we cannot substitute our evaluation for that of the CJSTC, the public entity charged with that duty, and thus deny to the students of a particular criminal justice training school tools deemed necessary and useful to their professional development.

Our Form 4A, Disclosure of Business Transaction, Relationship, or Interest, should be used by the director and teacher to make the disclosure to the school district board necessary to avail themselves of the protection of the "sole source" exemption.

While it is difficult for us to give advice in the context of an advisory opinion regarding whether conduct would be violative of Section 112.313(6), because such determinations could turn on subtleties of fact apparent and developable only in the context of a complaint proceeding, we do not believe that the director's and teacher's mandating use of their books in their classes would violate that statutory section, because it is consistent with the proper performance of their public duties that they teach the defensive techniques approved by the CJSTC.

Accordingly, under the scenario of this opinion, we find that a prohibited conflict of interest would not be created were the director and a teacher at the Institute to require the use of textbooks from which they receive a sales royalty.