CEO 96-17 -- August 29, 1996
CONFLICT OF INTEREST
BOARD OF ARCHITECTURE AND INTERIOR DESIGN
MEMBER PROVIDING AND TEACHING COURSES
FOR CONTINUING EDUCATION CREDIT
To: Carl Gerkin, AIA, Member, State Board of Architecture and Interior Design (Ormond Beach)
SUMMARY:
A prohibited conflict of interest would be created under Section 112.313(7)(a) were a member of the State Board of Architecture and Interior design to become a provider and instructor of continuing education courses. In light of the Board=s authority to establish criteria for the approval of continuing education courses and providers and to approve such courses, providers, and instructors, a Board member who submits his application to the Board for its approval of him or an entity created by him to be a provider or instructor has a prohibited contractual relationship with a business entity which is regulated by his agency, the Board. By contracting individually with individual architects and/or their firms to teach his courses, he also has prohibited contractual relationships with business entities, the individual architects and/or their firms, regulated by his agency.
A continuing or frequently recurring conflict between the Board member=s private interests and the performance of his public duties or an impediment to the full and faithful discharge of his public duties also was created by his seeking approval of himself as a provider and/or instructor for purposes of teaching continuing education courses due to the Board=s authority over and role in the development of administrative rules regarding such courses and the requirements for the renewal of architect=s licenses, and the approval of providers and instructors.
Because Section 481.205(1), Florida Statutes, requires the Board to consist, in part, of five registered architects, Section 112.313(7)(b), Florida Statutes, permits the Board member=s service on the Board notwithstanding the prohibition of the first part of Section 112.313(7)(a). However, because neither Section 481.205(1), Florida Statutes, nor any other provision of Chapter 481, Florida Statutes, requires a Board member also to be a compensated provider or instructor of continuing education courses and because being in the business of providing continuing education courses and/or teaching such courses which are required for license renewal is not a facet of the practice of architecture, which is generally regulated by the Board under Chapter 481, Florida Statutes, Section 112.313(7)(b) does not apply to permit the Board member=s proposed activity.
QUESTION:
Was a prohibited conflict of interest created by you, a member and chairman of the Board of Architecture and Interior Design, becoming an approved provider and instructor of continuing education courses for architects licensed in this State?
Your question is answered in the affirmative.
You advise that after graduating from the University of Florida in 1950, you started your architectural career and obtained your license to practice in 1954. You write that not only have you been practicing in Florida since that time, but at one time you also were registered to practice in 11 southeast states. Presently, you advise, you are a member of the State Board of Architecture and Interior Design ("Board"), having been first appointed in 1986. Pursuant to Chapter 481, Florida Statutes, the Board has the authority to examine and certify architects and interior designers, to prescribe standards of professional conduct, to investigate violations of Chapter 481, and to revoke licenses. You also write that you were elected by the Board to be its Chairman in 1990 and served in that capacity until your term expired in December 1990, at which time, because the Board was busy licensing new Interior Design applicants, and because you had served on the Board's Interior Design Committee, you became a consultant to the Board for purposes of assisting it in reviewing applications for licensure.
In October 1991, you again were appointed to the Board, you advise. At the expiration of that term in 1994, you were reappointed to another term which expires in October 1998. You write that you again were elected by the Board to two consecutive terms as Board Chairman in 1994 and 1995.
You write that the Board is a member of the Board of the National Council of Architectural Registration Boards (NCARB). As such, you advise, Board members in each jurisdiction are expected to serve on the various committees of the NCARB. During your terms, you have served on the Item Writing Committee for the Architectural Registration Examination (ARE) and the Grading Committees for the ARE. You also served on the task force that reviewed Atestlets@ that were to be used in the computer-based ARE and the Item Writing committee for the monographs prepared by the NCARB for use as continuing education tools for the profession. Presently, you advise, you are serving on the 1995-1996 Professional Development Committee which determines the subject matter of proposed monographs.
You relate that in 1994, the Legislature amended Section 481.215(3), Florida Statutes [Section 156, Chapter 94-119, Laws of Florida] to require that, in addition to interior designers, all architects must have 20 hours of continuing education every biennium. Section 481.215(4) gave the Board authority to establish criteria for the approval of continuing education courses and providers and directed it to adopt rules establishing criteria for accepting alternative nonclassroom continuing education on an hour-for hour basis. As a result, during the State Board=s rule-making process, two other architect Board members were appointed to the Board=s Continuing Education Committee and six registered architects, who were not Board members, were appointed to a task force to assist them, you write. The result was the adoption of Chapter 61G1-24, Florida Administrative Code, effective January 17, 1996, which includes Rule 61G1-24.002 which adopts by reference the Board=s publication, AArchitecture Continuing Education Handbook@ (1995). Encompassed within the publication is material covering the approval of continuing education courses and providerships.
You advise that after the Board=s rules were adopted, the Committee, with the task force=s assistance, also was requested to review the applications of continuing education providers, programs, and instructors and to make recommendations to the Board for action. Inasmuch as in 1995 you already had begun gathering together a group of professionals, including architects, attorneys, historians, financial planners, and others to conduct seminars that would meet the requirements of the statute and the Board=s rules, you also made application to the Board to become a provider and an instructor, you write.
You advise that you teach a course through Professional Seminars Group (APSG@), an unincorporated entity created by you to provide continuing education courses and credit hours to architects and interior designers. You advise that you are reimbursed for expenses and paid a Aspeaker=s fee@ by PSG for teaching the course. You further advise that PSG has been certified by the State Board as an Aarchitectural firm@[1] and has been approved by the Board as a continuing education provider for both architecture and interior design courses. PSG=s approval as an interior design continuing education provider expires on October 15, 1996 and its approval as an architecture continuing education provider expires on February 28, 1997, you write. You also advise that all of your continuing education programs which previously were approved by the Board will expire on those same dates.
In addition, you advise that PSG also is registered with the American Institute of Architects Continuing Education (AIA/CE) program. The information that you provided our staff indicates that a provider Aregisters@ with the AIA/CE program. The AIA/CE neither approves the courses taught by a provider such as PSG nor sets the number of learning units (LU=s) that a course registrant can obtain from attending a particular class. The number of LU=s are set by the provider according to guidelines established by the AIA/CE.
The copy of the PSG=s AThird and Fourth Quarter 1996 Course Schedule@ which you also provided to our staff indicates that eleven (11) different courses are being taught during the last two quarters of the year. Some are being taught as many as six (6) times. The course that you teach, AFlorida Law Governing Architects and Interior Designers and CE Requirement,@ is scheduled to be taught eight times during this time period. At least ten (10) different instructors are teaching the courses. Two courses, one a core level and the other an intermediate level course, are being taught by two of the same instructors. Two of the other courses also are being taught by two instructors. Two of the courses, AAlternative Dispute Resolution and AOwner-Architect/Contractor Agreements and General Conditions,@ are taught by lawyers. AFinancial Planning and Retirement Planning@ is taught by a certified financial planner, and AIntroduction to Basic Economics for the Practitioner@ is taught by two certified public accountants (CPA=s). The class synopsis that you provided staff indicates that your class, AFlorida Law Governing Architects & Interior Designers and Continuing Education Requirements,@ is designed to take the attendee through Chapter 481, Florida Statutes (Part 1--Architecture and Interior Design), as well as the administrative rules (Chapter 61G1-11, F.A.C.). You also write:
[The course] will be an interactive presentation with questions encouraged as the material is presented. We will give examples of violations of the statute and rules and the consequences when not followed. They can range from simple Letter of Guidance to License Revocation. We will also present the contents of the Continuing Education Handbook for Architects and Interior Designers. A small written quiz will be given at the end for discussion only.
The course schedule also indicates that the courses offered by your PSG are approved by the Florida State Board of Architecture and Interior Design for Continuing education hours. In addition, in order for PSG to maintain its accreditation by the Board, the AAgreement for Limited Services,@ which PSG enters into with the course instructors, requires that the instructors provide outlines of their course presentations, copies of all handouts, slides/overhead slicks, etc., and photographs of themselves and any possible alternate instructors.
You advise that due to your submission of an application, you were advised by the Board=s attorney to submit a Conflict of Interest form. Upon his receipt of the form, the Secretary of the Department of Business and Professional Regulation indicated to you that he felt that your proposed activities may create a prohibited conflict of interest. He suggested that you either resign from the Board, cease being a provider, or request an opinion from us.
Notwithstanding the Secretary=s opinion that a possible prohibited conflict of interest may exist, you contend that Section 112.313(7)(b), Florida Statutes, permits your proposed activities as a continuing education provider and instructor. Section 112.313(7) provides, as follows:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--
(a) 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 or she is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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 or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. . . . .
(b) This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance.
The first part of Section 112.313(7)(a) prohibits a public officer from having an employment or contractual relationship with a business entity which is doing business with or is regulated by his agency. The second part prohibits a public officer from having a contractual or employment relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which impedes the full and faithful discharge of his public duties.
In CEO 77-28, we opined that a person serving as executive director of the State Board of Accountancy would be prohibited by Section 112.313(7)(a) from teaching a professional development course for compensation, which course would qualify for continuing professional education credit and which would be sponsored by a professional organization. We advised that while the Board generally does not regulate accountancy professional organizations, to the extent that such organizations sponsor professional development courses that must be approved for credit by the Board, such organizations are subject to the regulation of the Board. Therefore, we opined that the executive director would have a prohibited employment or contractual relationship with a business entity which is subject to the regulation of his agency. We opined further that if the executive director were to teach a course sponsored by a professional organization, an impediment to the full and faithful discharge of his public duties also would exist because, as executive director to the Board, he was responsible for designing and implementing all Board decisions, procedures, and programs as well as for drafting proposed rules implementing and interpreting the Florida Accountancy Law. Therefore, we advised, his public duties would put him in the position of assisting the Board and its Committee on Continuing Professional Education to evaluate matters which would relate directly to his private interests. Furthermore, we advised that if the executive director were to teach a continuing education course in his own name and if he were to be paid directly by each practitioner who takes the course, he would have a prohibited contractual relationship with each practitioner (Abusiness entity@ as that term is defined at Section 112.312(5), Florida Statutes) taking the course, who also is regulated by the Board.
We similarly opined in CEO 87-61, Question 2, that a Criminal Justice Standards and Training Commission member who also was a law enforcement training center director would be prohibited from acting as a consultant to persons involved in the training of law enforcement and corrections personnel in the State. We advised that because the Criminal Justice Standards and Training Commission is responsible for certifying law enforcement officers, correctional officers, and correctional probation officers, as well as instructors, and for establishing training standards and curricular requirements and adopting a program regarding mandatory continuing training or education, his employment as a consultant to persons involved in the training of law enforcement and correctional personnel would impede the full and faithful discharge of his public duties.
We adhere to our reasoning in those opinions here and find that, as a provider and instructor of continuing education courses, you have a conflict of interest prohibited by Section 112.313(7)(a). We are of the view that by having to seek approval of your courses from your Board, you have a contractual or employment relationship with a business entity which is regulated by your agency. Section 112.312(5), Florida Statutes, defines the term Abusiness entity@ to mean
any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state.
Furthermore, by contracting individually with individual architects and/or their firms to teach your courses, you have contractual relationships with business entities which are regulated by your agency.
Additionally, we are of the view that a continuing or frequently recurring conflict between your private interests and the performance of your public duties, as a Board member, or an impediment to the full and faithful discharge of your public duties, as a Board member, under the second part of Section 112.313(7)(a), is created by your seeking approval of and teaching or providing continuing education courses for which you are compensated. This is due to the Board=s authority over and role in the development of administrative rules regarding such continuing education courses and the continuing education requirements for renewal of architecture and interior design licenses and approval of providers and instructors.
We note that under the second clause of Section 112.313(7)(a) it is not necessary that a public officer actually misuse his public position, and this opinion does not make such a finding of misuse or intent to misuse regarding your conduct. The existence of temptation for a public officer to forsake the objective performance of his public duty in favor of his own private interests is sufficient to create a prohibited conflict; the existence of such a temptation is to be discerned from an examination of the nature and extent of the public officer=s duties together with a review of his private employment to determine whether the two are compatible, separate and distinct, or whether they coincide to create a situation which tempts dishonor. See Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982). Clearly, in a situation in which a public officer has no public duties or responsibilities in relation to his private employment, he could not be tempted to compromise the performance of his public duties. However, here, your situation is one in which you do have public duties with respect to determining continuing education requirements and approving continuing education courses, providers, and instructors, while at the same time you seek approval of and provide such courses and are an instructor. Thus, we find that a prohibited conflict of interest exists.
You have asked us to consider whether the exemption of Section 112.313(7)(b) applies to permit your proposed activities as a continuing education provider and instructor. You argue that as a professional member of the Board, you are engaged in the practice of architecture and enter in contractual relationships, all of which are regulated by the Board. You argue that being a continuing education course provider and instructor are only facets of the practice of architecture which is regulated by the Board and permitted by Section 112.313(7)(b).
Typically, as we noted in CEO 95-27, we have discussed Section 112.313(7)(b) relative to situations where a public officer sits on a board that regulates himself or his interests and where, by law, persons holding those interests are required or permitted to sit on that board. See, for example, CEO 94-45 and CEO 84-63. Consequently, because Section 481.205(1), Florida Statutes, requires the Board to consist of 11 members, five of whom must be registered architects who have been engaged in the practice of architecture for at least five years, Section 112.313(7)(b) permits you to serve on the Board notwithstanding the fact that a prohibited conflict of interest would otherwise exist due to the Board=s regulation of the practice of architecture and its licensees. However, neither Section 481.205(1) nor any other provision of Chapter 481 requires that a Board member also be a compensated provider of continuing education courses or a compensated instructor of such courses. Because we do not view your acting as a continuing education provider or instructor for compensation as a facet of the practice of architecture, we find that a prohibited conflict of interest is created by your becoming an approved continuing education provider or instructor in the State while at the same time serving as a member of the State Board.
Although you advise that there is no exemption from State licensure for teaching architecture related courses, there also is no requirement that an instructor be licensed by the State Board of Architects and Interior Designers in order to teach continuing education courses. For example, you advise that Florida A & M University has an architectural faculty of 25 members. Of that number, ten (10) are Florida licensed architects, one (1) is licensed as an architect in another state, and the remainder are not licensed as architects in any state. Similarly, you write that the University of Florida has 36 full-time architectural faculty members. Of that number, 20 are Florida licensed architects, nine (9) are licensed to practice architecture in another state, one (1) is a professional engineer, and the remainder are not licensed in any state. There also are eight (8) visiting architectural faculty members of which six (6) are licensed in Florida and two (2) are not licensed in any state.
Finally, with respect to the course that you teach, we caution that you also are governed by the following provisions within the Code of Ethics for Public Officers and Employees:
MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes.]
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 or her official position for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), Florida Statutes.]
These provisions prohibit you from using any public resources or any information not available to the general public to further your private business activity. In other opinions, we have noted that Section 112.313(8), Florida Statutes, prohibits public officers and employees from imparting information gained through their official positions and not available to the general public. See CEO 82-66, CEO 87-53, CEO 93-5, and CEO 93-9. Thus, as long as your course does not include information that you obtained through your position, as a member or Chairman of the Board, and that is not available to members of the general public, these provisions would not be implicated.
Accordingly, we find that a prohibited conflict of interest would be created were you to act as a continuing education provider or instructor in the State while serving as a member of the State Board of Architecture and Interior Design. However, we also are of the opinion that nothing in this opinion would prohibit you from acting as a provider or instructor outside of Florida, where the Board plays no role in approving either your courses or yourself as an instructor and/or provider.
ORDERED by the State of Florida Commission on Ethics meeting in public session on August 29, 1996, and RENDERED this 3rd day of September, 1996.
____________________________________
Mary Alice Phelan
Chair
[1] Section 481.219, F.S., requires a certificate of authorization for a corporation, partnership, or person practicing under a fictitious name, offering architectural services to the public jointly or separately.