CEO 92-36 -- September 3, 1992

CONFLICT OF INTEREST

COMMUNITY COLLEGE'S ADJUNCT TEACHER ENTERING INTO A

SEPARATE CONSULTING CONTRACT WITH THE COMMUNITY

COLLEGE TO DEVELOP COURSE MATERIALS

To: Ned N. Julian, Jr., Attorney for Seminole Community College (Orlando)

SUMMARY:

Section 112.313(3), Florida Statutes, prohibits an adjunct teacher from contracting with a community college to develop course materials under a consulting contract which is separate and apart from the teacher's contract of employment as an adjunct, unless one of the exemptions enumerated in Section 112.313(12) applies. These exemptions include such situations as where the teacher is the only source of supply within the college district and makes disclosure to the college's board of trustees; where the transaction in the aggregate between the college and the teacher, apart from the teacher's teaching contract, does not exceed $500 per calendar year; or where the contract is let pursuant to a system of sealed, competitive bidding and the teacher makes the appropriate disclosure.

Assuming that the course materials developed under a consulting contract become the property of the community college or are copyrighted by the college, nothing in the Code of Ethics prohibits a person from being employed by the community college under the consulting contract both to develop course materials specific to the training needs of area businesses and, using this same material, to provide training to area businesses. Additionally, a person who has been employed under an adjunct contract of employment, but is not presently under contract with the college, is not prohibited from contracting with the college on a consulting basis, even if reasonably expecting to be employed by the college under successor adjunct contracts during the remainder of the school year.

QUESTION 1:

Does the Code of Ethics for Public Officers and Employees prohibit a Community College's adjunct teacher from contracting with the community college to develop course materials under a separate contract?

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

In your letter of inquiry and your responses to our staff's questions, you advise that the Seminole Community College employs both regular, full-time faculty members, who are employed on an annual or continuous contract of employment, and adjunct teachers, who are given contracts to teach one or more courses or short courses for one or more terms in the College's school year. Typically, a separate contract is entered into for each term in which services as an adjunct instructor are to be rendered, you advise, although those adjuncts who will teach all three terms receive a single contract covering all three terms. You also advise that adjunct teachers are not eligible to receive a continuing contract regardless of how long they have been teaching at the college or how large their course load is. The number of courses and classes taught by the adjunct instructor also varies depending on the need for services, and the hours required of the instructor are limited, you advise. You advise that adjunct teachers are not considered either to be members of the regular faculty or part-time employees.

You advise that the Community College's school year is divided into two full terms and the Summer term, which is divided into two sub-terms. In addition, the College offers short courses of various durations, but never as long as a full term. An adjunct instructor might teach a weekend short course, one or more regular course offerings on a term by term basis, or a private industry training program which has been contracted for with the College by private industry. Thus, you advise, the instructor's teaching duties might be performed on a part-time basis over an entire school year, might encompass one or more terms of the school year, or might even be sporadic.

You advise that adjunct teachers are paid from budget code No. 560, while persons who are employed to teach overflow classes as adjuncts are paid under budget code No. 521. Regular full time faculty also are paid under budget code No. 521, you advise. You also advise that these funds are not OPS budgeted funds. In addition, the College deducts social security and withholding for taxes from payments which adjunct teachers receive for their services, you advise.

You advise that the Community College has contracted with an individual as a part-time or adjunct teacher. You also advise that this same person is available and qualified to develop course materials under a separate consulting contract with the Community College. However, you are concerned about whether the Code of Ethics prohibits the adjunct from developing course materials under a separate consulting contract or agreement.

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. 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.

[Section 112.313(3), Florida Statutes.]

This provision prohibits a public employee from acting in a private capacity to sell any realty, goods, or services to his public agency. Section 112.312(2), Florida Statutes (1991), defines the term "agency" to include a community college. Sections 112.313(12)(e) and (f), Florida Statutes, however, provide exemptions to Section 112.313(3), as follows:

In addition, no person shall be held in violation of subsection [112.313(3)] or subsection [112.313(7)] if: . . .

(e) 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.

(f) The total amount of the transaction in the aggregate between the business entity and the agency does not exceed $500 per calendar year.

Even before we determine whether one of the above exemptions applies, we must determine whether the adjunct teacher is a public employee. In Wright v. State Commission on Ethics, 389 So.2d 662, 663 (Fla. 1st DCA 1980), the following definition of "employee" as set forth by the Florida Supreme Court in City of Boca Raton v. Mattef, 91 So.2d 644, 647 (Fla. 1956), was used by the Court in determining that a teacher on leave without pay was no longer an employee of a school board for purposes of the applicability of Section 112.313(10), Florida Statutes:

An employee is one who for a consideration agrees to work subject to the orders and direction of another, usually for regular wages but not necessarily so, and, further, agrees to subject himself at all times during the period of service to the lawful orders and directions of the other in respect to the work to be done.

In CEO 77-132, we found that the relationship of an adjunct professor to his university was that of an independent contractor, rather than that of an employee. We noted that the definition of an independent contractor is generally stated as: "One who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the product or result of his work." 41 Am. Jur.2d Independent Contractors s. 1 (1968). We also noted that the two elements which distinguish an independent contractor from an employee are that the contractor has an independent business or occupation and that the contractor is not subject to the control of the employer as to the manner or detail of performance of the contracted work. We ultimately found that, in light of the fact that the adjunct professor was paid under OPS, was not a salaried employee, and did not accrue the benefits which other faculty members receive, he met the conditions for an independent contractor rather than an employee. Therefore, the Code of Ethics did not apply to prohibit the university at which he taught from awarding a printing contract to the newspaper by which he was employed.

From the information that you have provided, it is not immediately clear whether the adjunct teacher is an employee of the Community College or an independent contractor for purposes of the applicability of the Code of Ethics. As in CEO 77-132, the adjunct teacher here does not accrue credits towards leave, but unlike the adjunct professor in CEO 77-132, the adjunct teacher's salary is paid out of budgeted accounts other than OPS, and withholding for taxes and social security are deducted from his pay check. In addition, an adjunct teacher is subject to the control of the Community College in terms of the hours worked, the course curriculum to be followed, and the College's policies and procedures with respect to class attendance and student grading. Therefore, because the indicia of an employment relationship exist, we find that the adjunct teacher is an employee of the Community College and that Section 112.313(3), Florida Statutes, therefore would ordinarily apply to prohibit his selling his services to the Community College.

As noted above, Section 112.313(12)(e), Florida Statutes, permits the employment of the adjunct teacher under a separate contract for purposes of developing course materials, which employment ordinarily would be considered a violation of Section 112.313(3) if the adjunct teacher is considered to be the "only source of supply within the political subdivision," and there is full disclosure of the teacher's interest in the business entity to the governing body of the political subdivision prior to the sale of services to the Community College. Disclosure is made by completing and filing "Form 4A, Disclosure of Business Transaction, Relationship, or Interest" with the College's Board of Trustees. See CEO 80-86. "Business entity" has been defined at Section 112.312(4), Florida Statutes, to include a "self-employed individual," and Community Colleges have been designated as political subdivisions, the governing bodies of which are their boards of trustees. Thus, assuming that the adjunct teacher is the sole source or only source of supply within the College District, Section 112.313(12)(e) would permit the College's contracting with the teacher under a separate consulting contract for purposes of developing course materials. Because of the lack of sufficient and specific information, we do not express an opinion on whether the adjunct teacher would qualify as the "only source of supply." See CEO 85-15, CEO 88-13, CE0 88-74, CEO 91-25, CEO 91-58 and CEO 92-28.

In addition, Section 112.313(12)(b), Florida Statutes, exempts business awarded to the lowest bidder under a system of sealed competitive bidding, but only where: (1) the teacher has in no way participated in either the determination of the bid specifications or the determination of the lowest or best bidder; (2) the teacher or his spouse or child has not used or attempted to use influence to persuade the College or any personnel thereof to enter into the contract other than by the mere submission of a bid; and (3) the adjunct teacher, prior to or at the time of the submission of the bid, has filed a statement with the Supervisor of Elections disclosing his interest and the nature of the intended business (See Commission on Ethics Form 3A). Therefore, the College's contracting with the adjunct teacher would not be prohibited if the contract were awarded under the conditions set forth above.

Section 112.313(12)(f), Florida Statutes, also would permit the College's contracting with the adjunct teacher if the total amount of the transactions in the aggregate between the adjunct teacher and the college, apart from his teaching contact, does not exceed $500 per calendar year.

Accordingly, we find that Section 112.313(3), Florida Statutes, prohibits an adjunct teacher from contracting with the Community College to develop course materials under a consulting contract which is separate and apart from the adjunct's employment contract, unless one of the exemptions enumerated in Section 112.313(12) applies, as described above.

QUESTION 2:

Does the Code of Ethics prohibit a person from being employed under a consulting contract both to develop course materials specific to the training needs of area businesses and to provide training to the area businesses using the materials developed?

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

As we noted in our response to Question 1 above, Section 112.313(3), Florida Statutes, generally prohibits a public employee from acting in a private capacity to sell services to the political subdivision which he serves. In CEO 90-70, we recognized that adding duties to those already performed by staff members in their public capacities and increasing their salaries commensurately, thereby creating essentially a new position, did not constitute "acting in a private capacity"; rather, it appeared to be a matter of adding responsibilities to work performed in a public capacity. Similarly, we find that no prohibited conflict of interest would be created by combining two separate functions under one employment contract to create a new position out of what ordinarily might have been two contract positions.

You have not indicated that the course materials developed under the consulting contract were not the property of the Community College. If, however, the material remained that of the teacher so that the teacher had the right to publish and sell it for use in the course, a possible prohibited conflict of interest in violation of Section 112.313(7)(a), Florida Statutes, would be created. Section 112.313(7)(a), Florida Statutes, provides as follows:

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.]

This section prohibits the teacher from having an employment or contractual relationship with a business entity that is doing business with, or is subject to the regulation of, the Community College. It also prohibits the teacher from having an employment or contractual relationship which creates a continuing or frequently recurring conflict with his private interests and the performance of his public duties, or impedes the full and faithful discharge of his public duties.

Because there is the potential of a continuing or frequently recurring conflict between his private interests and the performance of his public duties or an impediment to the full and faithful discharge of his public duties, under the theory that the teacher would be tempted to use his position as teacher to select materials which would generate private profit for himself should he retain the right to sell the materials, a violation of the second part of Section 112.313(7)(a), Florida Statutes, would be created. See CEO 92-28.

Accordingly, assuming that the course materials developed under the consulting contract become the property of the Community College (see also CEO 85-15), we find nothing in the Code of Ethics that would prohibit a person from being employed by the Community College under a consulting contract both to develop course materials specific to the training needs of area businesses and to provide training to the area businesses using this same material.

QUESTION 3:

Does the Code of Ethics prohibit a person who has been employed under an adjunct contract of employment from contracting with the Community College on a consulting basis to develop course materials, where he reasonably expects to later be employed by the College under successor adjunct contracts during the remainder of the school year?

Your question is answered in the negative.

We noted in our response the Question 1, above, that an "employee" is "one who for a consideration agrees to work subject to the orders and direction of another, usually for regular wages but not necessarily so, and, further, agrees to subject himself at all times during the period of service to the lawful orders and directions of the other in respect to work to be done." See Wright v. State, Commission on Ethics, 389 So.2d 662, 663 (Fla. 1st DCA 1980). However, a person who is no longer under a contract of employment no longer receives regular wages and no longer is under the control of the Community College. Therefore, the former adjunct, in this case, is no longer an employee of the Community College. We find, as did the Court in Wright, that an expectancy of future employment cannot be equated with or transformed into employee status for purposes of the Code of Ethics. Id. at 663.

Accordingly, we find that a person who has been employed under an adjunct contract of employment but is not presently under contract with the Community College may contract with the Community College on a consulting basis to develop course materials, even if the person reasonably expects to be employed by the College under successor adjunct contracts during the remainder of the school year.