A school board member appropriately abstained from voting to renew a charter middle school's charter because her daughter is one of 55 employees at the school.  The size of the class of employees affected by the vote to renew the school's charter was sufficiently small that under the Commission's precedent, Section 112.3143(3), Florida Statutes, required abstention.

QUESTION:

Were you, a school board member, prohibited from voting on the renewal of a school's charter where your daughter is employed by the charter school as a guidance counselor?

Based upon the circumstances presented, your question is answered in the affirmative.

From the information you submitted with your opinion request as well as conversations between you and our staff, we understand that your adult daughter is employed as a guidance counselor at a charter middle school operating on the site of what was formerly a public school.  The school's charter recently came before the school board for renewal, and you were advised to abstain from voting on the matter because of your daughter's employment at the charter school.  Although you acquiesced with the recommendation, you question whether the Code of Ethics mandated your abstention.

Section 112.3143(3), Florida Statutes, provides:

No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.

"Relative" is defined in Section 112.3143(1)(b), Florida Statutes, to include one's daughter.

Clearly, the vote involving the charter school did not inure to your special private gain or loss.  However, even though your daughter is an adult and is not dependent upon you for support, Section 112.3143(3), Florida Statutes, requires us to consider votes that the public official knows would inure to the special private gain or loss of her relatives.  For that reason, we must examine the impact of the school board's charter school action on your daughter.

Our early precedent is not particularly helpful in this case because it was not until 1991 that the term "relative" first appeared in Section 112.3143(3), Florida Statutes.  Notwithstanding, in CEO 77-57, we advised a school board member whose wife was employed as a teacher by the school district that he did not have a voting conflict when voting on general matters involving district employees, but if he were faced with his vote involving only his wife or a select group of teachers which included his wife, he should disclose the conflict.

In your situation, the school's charter recently came before the school board for renewal and, had it not been renewed, the school would have reverted to a public school at the end of the current school year, in which case its staff would have to seek employment elsewhere.  The school's public accountability report for the 2001-2002 school year indicated that the school has a staff of 55 and an enrollment of 827 students.^[1]  While we recognize that the issue that actually came before the school board was not whether to renew the school's charter, but for how many years the school's charter should be renewed, the fact remains that had no affirmative action been taken by the school board, the school would have ceased to operate at the end of its current term and its employees would lose their jobs.

Our precedent has examined the "size of the class" in determining whether a matter inures to one's "special private gain."  CEO 01-8 contains a thorough review of our precedent in this area.  As we stated there and in other opinions:

Where the class of persons is large, we have concluded that "special gain" will result only if there are circumstances unique to the officer under which he or she stands to gain more than the other members of the class.  Where the class of persons benefiting from the measure is extremely small, we have concluded that the possibility of "special gain" is much more likely.

Here, your daughter is one of approximately 55 staff persons employed by the charter school.  A class of that size is sufficiently small that under our precedent a vote to renew the school's charter would inure to your daughter's "special private gain."  See CEO 90-64, CEO 92-37, CEO 93-19 and CEO 99-12.  Therefore, you were well-advised to abstain from the votes on the school's charter, although not for the proper reason.  It was not about the length of time the charter would be granted; nor was it the possibility that returning staff would receive a $500 bonus.  The effect of these issues by themselves would have been "remote and speculative" on the school's employees.  See CEO 01-8, for its discussion of what constitutes "remote and speculative."  Instead, it was simply a "size of class" analysis that mandated your abstention.  Where there are 55 employees at the charter school, a group that size is small enough that a vote to renew the school's charter inured to the special private gain or loss of those employees, and one of those employees was your daughter.

            As you know, the Commission on Ethics is not the venue to which your concerns about the school district's treatment of the charter middle school should be directed.  Enabling school "choice" through a system of public and district-approved charter schools is a balance that must be wrought by the school board pursuant to Section 1002.33, Florida Statutes.  We further note that Section 1002.33, Florida Statutes, contains an appeal process for charter schools whose charter applications are denied or revoked.

Accordingly, under the circumstances presented, a voting conflict was created by the school board's vote to renew a charter middle school's charter where your daughter is one of 55 employees at the school, and your abstention from voting was appropriate under the rationale discussed herein.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 3, 2004 and RENDERED this 8th day of April, 2004.

__________________________

Richard L. Spears

Chairman

^[1] http://www.discoveryacademy.org/DISCOVERY%20ACADEMY%20AT%20LAKE%ALFRED-6-8-02.pdf