CEO 88-12 -- February 4, 1988

CONFLICT OF INTEREST

FORMER STATE UNIVERSITY EMPLOYEE'S CORPORATION

CONTRACTING WITH UNIVERSITY TO PROVIDE FOR

ADMINISTRATION OF STATEWIDE TESTING PROGRAM

To: Ms. Barbara C. Wingo, Associate General Counsel, University of Florida, Gainesville

SUMMARY:

No prohibited conflict of interest would be created were the former associate director for test administration at a state university to contract with that university to provide for the administration of a statewide testing program. Under the circumstances presented, neither subsection (3) nor subsection (4) of Section 112.3185, Florida Statutes, would be violated, as no such contract existed while the employee was employed by the university, and he provided no recommendations or advice concerning such a contract. Section 112.3185(5), Florida Statutes, also would not be violated as a material term of the contract constitutes payment to personnel, and the remaining amount of money to be paid under the contract does not exceed the former employee's salary at the University. CEO 86-69 is referenced.

QUESTION:

Would a prohibited conflict of interest be created were the former associate director for test administration at a state university to contract with the university through a corporation of which he is president to recruit, hire, and pay testing center personnel to administer a statewide testing program, when the former employee's duties included overall supervision of this program?

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

In your letter of inquiry and telephone conversations with our staff you have advised that Mr. Richard Feinberg recently retired from the University of Florida as the Associate Director for Test Administration. In this position he was responsible for managing the centralized University testing service and the distribution and return of secure test materials for three large statewide testing programs: the Statewide Student Assessment Test (SSAT), the College Level Academic Skills Test (CLAST), and the Florida Teacher Certification Examination (FTCE). His duties also included the statewide test administration of CLAST and the supervision of 19 test administration centers for the FTCE.

The former employee's duties with regard to the FTCE included designing operating and test security procedures, monitoring test center operations, recruiting test center supervisors, training test center personnel, and investigating any irregularities in testing procedures. The only contracts involved in this process were approximately 700 OPS (other personal services temporary employment) contracts for test center personnel. The former employee had general oversight over these contracts but did not set their terms. He signed the contracts as the "Agreement Negotiator (individual initiating agreement)." The University did not contract with any person or entity to recruit, hire, or pay test center personnel for the FTCE.

The University currently intends to enter into a contract with an individual or entity to recruit, hire, and pay test center personnel for the FTCE. You question whether a prohibited conflict of interest would be created under Section 112.3185, Florida Statutes, were the University to contract with the corporation of which the former employee is president to provide these services.

The Code of Ethics for Public Officers and Employees provides in relevant part:

No agency employee shall, after retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract in which the agency employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice or investigation while an officer or employee. [Section 112.3185(3), Florida Statutes (1987).]

No agency employee shall, within 2 years of retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract for contractual services which was within his responsibility while an employee. [Section 112.3185(4), Florida Statutes (1987).]

For purposes of Section 112.3185, Florida Statutes, the term "agency" is defined to include "any state officer, department, board, commission, or council of the executive branch or judicial branch of state government." As the Board of Regents is the Director of the Division of Universities within the Department of Education, we are of the view that the former employee's "agency", for purposes of Section 112.3185 is the Board. See Section 20.15(3), Florida Statutes.

Here, you have advised that no contract has ever existed for the recruiting, hiring, and paying of FTCE test center personnel. Also, in a telephone conversation with our staff you advised that the suggestion for the proposed contract came from the Department of Education, and that the former employee provided no recommendations or advice concerning such a contract. For these reasons, it is apparent that neither subsections (3) or (4) of Section 112.3185 is applicable to this situation.

The Code of Ethics also provides:

The sum of money paid to a former agency employee during the first year after the cessation of his responsibilities, by the agency with whom he was employed, for contractual services provided to the agency by him, shall not exceed the annual salary received by him on the date of cessation of his responsibilities. The provisions of this subsection may be waived by the agency head for a particular contract if the agency head determines that such waiver will result in significant time or cost savings for the state. [Section 112.3185(5), Florida Statutes (1987).]

This provision limits the amount of money which can be paid to a former agency employee for contractual services during the first year after leaving employment. In previous opinions we have advised that because of the language used in the statute, we are of the view that the prohibition refers to the "gross" amount paid by the agency, rather than the "net" amount received by a former employee after subtracting the costs incurred by the former employee in the performance of the contract. See CEO 86-69.

In a telephone conversation with our staff you advised that the total amount contemplated by the contract is $99,000. However, approximately $84,000 of this amount would be paid directly to the test center personnel by the employee's corporation. In our opinion, these payments to personnel are a material term of the contract and differ significantly from "costs incurred by the former employee in performance of the contract." We also note that the remaining amount of the contract is considerably less than the former employee's salary at the University.

Accordingly, we find that no prohibited conflict of interest would be created were the corporation of the former Associate Director for Test Administration to contract with the University to provide for the administration of a statewide testing program.