CEO 04-17 -- October 14, 2004

No prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were a teacher to engage in tutoring activities, for a fee and on school grounds, where the teacher is prohibited from tutoring his or her own students and is subject to the same requirements for leasing the facilities as other entities. Nor would a conflict be created were the teacher to provide such tutoring at no cost to the student, or to be employed by a company which provides such tutoring services, provided the teacher does not tutor his or her own students. A teacher would be prohibited by Section 112.313(7) from tutoring, for a fee, students enrolled in his or her own class.

Would a conflict of interest exist were the Palm Beach County School District's collective bargaining agreement revised to allow a teacher to tutor, for pay, students who attend the school at which the teacher is based (excluding students assigned to the teacher's classes), after regular hours, on school grounds?

In your letter of inquiry and additional materials supplied to this office, you advise that as Chief Counsel for the Palm Beach County School District, you have been authorized by the School Board to request our opinion as to whether a prohibited conflict of interest would be created were the collective bargaining agreement with the teachers' association amended to permit certain tutoring activities outside the teachers' in-school responsibilities.

Your first question is whether a violation would exist if the Palm Beach County School District's collective bargaining agreement were revised to allow a teacher to tutor, for pay, students who attend that teacher's school (excluding students assigned to the teacher's classes^[1]), after regular hours, on school grounds. Currently, the collective bargaining agreement implicitly permits off-duty tutoring, but not on school property. You state that the proposed revision would be beneficial to students because it would make quality tutoring available for them without the hardship of finding transportation to another site. You state that "most likely, teachers' use of District property for private tutoring would be through a standard lease agreement (probably for a nominal fee as contemplated by School Board Policy 7.18)." The prohibition against tutoring students enrolled in a teacher's own classes would be ret ained under the proposed amendment.

School Board Policy 7.18 allows the use of school facilities by community and commercial organizations pursuant to certain guidelines and supervision by the School Superintendent. According to an established rate schedule, it is contemplated that teachers wishing to use a classroom for after-hours tutoring would be subject to the same requirements as other entities or organizations desiring to use school facilities.^[2] The parties to the lease agreement would be the teacher and the School District, represented by the Principal.

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. [Section 112.313(7), Florida Statutes.]

Section 112.313(7) prohibits a teacher from having a contractual relationship with any business entity which is subject to the regulation of, or is doing business with, his or her agency. A teacher's agency is the school at which he or she is employed. See CEO 77-42, CEO 76-182, and see also CEO 91-58 (Principal's agency is the school).

As the teacher is prohibited from having an employment or contractual relationship with a business entity doing business with his or her school, we next review the definition of "business entity," which is defined at Section 112.312(5) 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. [E.S.]

Under this definition, even an individual such as a self-employed person performing tutoring services can be a "business entity." See, CEO's 96-17, 01-10. Therefore, a teacher providing tutoring services in his or her off-duty hours would have a contractual relationship with a "business entity." While a lease agreement constitutes "doing business" (CEO 86-24), the teacher's business entity would not be doing business with the teacher's agency (the school) but rather would be doing business with the school district. In CEO 91-58, we found that Section 112.313(7) would not be violated were a school principal to have part time employment with a company selling textbooks to the school district, to other schools within the district, or to other schools and districts outside of her school district, so long as she did not sell to her own school. Accordingly, the first part of section 112.313(7) would not operate to prohibit the proposed off duty employment.^[3]

The second part of Section 112.313(7) prohibits a public officer from having any contractual relationship which would 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 the officer's public duties. This provision establishes an objective standard which requires 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." Zerweck v. Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982).

School Board Policy 1.013(3)(b), (4) provides the general responsibilities of teachers:

[3] b. Pursuant to § [1012.53], Fla. Stat., the primary duty of instructional personnel is to work diligently and faithfully to help students meet or exceed annual learning goals, to meet state and local achievement requirements, and to master the skills required to graduate from high school prepared for postsecondary education and work. This duty applies to instructional personnel whether they teach or function in a support role.

4. It shall be the duty of the teacher to provide instruction, leadership, classroom management and guidance to pupils through democratic experiences that promote growth and development both as individuals and as members of society. Pursuant to § [1012.53], F.S., teachers shall perform duties prescribed by school board policies relating, but not limited, to helping students master challenging standards and meet all state and local requirements for achievement; teaching efficiently and faithfully; using prescribed materials and methods, including technology-based instruction; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board.

Principals and teachers are required to try to help students at school before recommending tutoring: “Every effort shall be made by the Principal and employee to help the student with his/her difficulties at school before recommending that parents engage a tutor.” Article II, Section L, “Tutoring,” Paragraph 1, of The Collective Bargaining Agreement Between the School District of Palm Beach County, Florida and Palm Beach County Classroom Teachers Association, July 1, 2002 - June 30, 2005 (“CTA Agreement”). To the best of our knowledge, this provision refers to assisting students in the scope of the regular school day, and does not refer to assistance outside of the normal school day. [Emphasis in original.]

Under the proposed change to the collective bargaining agreement, teachers who engage in tutoring activities would continue to be prohibited from offering tutoring services to their own students. Therefore, it does not appear that there would be any substantial opportunity for a teacher to be tempted to compromise his or her public duty performance (for example, by being less vigorous regarding in-school teaching efforts) for the benefit of his or her private interests.

Allowing teachers to tutor students on school grounds would not alter this analysis. Section 112.313(6), Florida Statutes, prohibits the corrupt use of public resources for private gain, but as the use of school facilities will have been specifically authorized by the School Board under the proposed change to the collective bargaining agreement, it cannot be said that such use would be with wrongful intent. You have advised that teachers would not be permitted to use the secretarial services or consumable resources of the school in their private tutoring activities, and we caution that use of school resources without such permission could constitute a misuse of position.

Accordingly, allowing teachers to tutor students enrolled at their school, but not in their classes, on school grounds, whether for a fee or voluntarily and at no cost to the student, would not violate Section 112.313(7), Florida Statutes.

Would a prohibited conflict of interest exist if teachers were to hold an employment or contractual relationship with a company offering tutoring services to students on school grounds, after school hours?

The materials submitted to our office indicate that teachers may be employed by private "tutoring companies" which would operate on District property. If, as in the case of individual teachers operating as tutors, the contracting party would be the School District, then since the teacher's agency is the school, rather than the District, the teacher would not have a contractual relationship with an entity doing business with his or her public agency, and the first part of Section 112.313(7) would not be implicated.

Neither is there any apparent conflict under the second part of the statute. As the prohibition on tutoring one's own students would remain in place, it does not appear that a teacher's off-duty employment with a firm offering tutoring services–whether on or off the school's property–would undermine any public duty of the teacher.

If a teacher's employment involves teaching music, dance, art, or drama, would a prohibited conflict of interest exist if such employee were also to give private lessons for a fee to District students, including his or her own students, either on or off school property where such lessons are not remedial in nature?

Under the current collective bargaining agreement, teachers of music, dance, art, or drama, unlike the teachers of other subjects, are permitted to give private lessons, for a fee, to District students, including students enrolled in their own classes, where such lessons are not remedial in nature. The agreement currently prohibits giving such lessons on school property, and the District is contemplating changing the agreement to permit the use of District facilities for these activities. Teachers offering such tutoring would be subject to the same leasing requirements described for tutors or other community or commercial users of school facilities described in Question 1.

You posit that the rationale for permitting teachers of the arts to tutor their own students may be that

these kinds of subjects are not tested on state achievement tests and the risk for a conflict of interest is far less when the private instruction is not for remedial purposes. For example, there would be no motivation for a teacher to teach the art/music lessons less effectively at school (potentially creating a need for remediation) if the outside lessons are allowed only in cases where the lessons are not for remedial purposes. Another potential reason involves the artistic method and artist/teacher’s relationship to the student: art/music teachers are not fungible. Each teacher generally has a particular method, style, artistic emphasis, or talent that cannot necessarily be offered in exactly the same way by another art/music/dance/drama teacher.

If a parent desires his/her child to receive extra art/music lessons in order to achieve greater artistic development (not remedial, but supplemental), the parent may understandably want the child to receive that extra instruction from the specific teacher that already has an artistic relationship with the child and has the particular emphasis, style, or talent involved in the lessons that the student already receives at school. If a different teacher were consulted privately, it could conflict with the specific method or stylistic emphasis to which the student is accustomed in lessons at school. Therefore, it would make sense educationally for the student to have the same teacher both at school and in private lessons.

The analysis with respect to the first part of Section 112.313(7), Florida Statutes is the same as with Questions 1 and 2. The teacher in question would not have a contractual relationship with an entity doing business with his or her agency, because any lease agreement would be with the District, rather than the school.

With respect to the second part of the statute, we disagree that the prohibition on remedial instruction effectively eliminates the potential for conflict. While this restriction may indeed reduce any motivation for a teacher to teach less effectively at school, the teacher's responsibility to be objective in the in-school treatment of his or her students may be compromised when some of the students are also privately taking lessons from that teacher. A teacher who has a private contractual relationship with the parents of some of his or her students may be tempted to demonstrate favoritism to those students in grading, assignment of roles in school performances and events, and other in-class treatment. In CEO 84-111, we discussed the issue of supervisors having contractual relationships with subordinates outside the workplace. While we found that no violation would exist under the circumstances at issue there, we pointed out that, "It is possible that where a public employee has an ongoing business relationship with a subordinate, that private business relationship and the employee's interests in keeping that relationship harmonious, productive, and profitable would impede the employee's duty of impartially evaluating the subordinate's job performance and would lead to the frequently recurring conflict between those interests." Similarly, where a teacher gives private lessons to some of his or her own students, there is the potential for the teacher's responsibility to treat the child impartially to be impeded by the desire to maintain a harmonious relationship with the child and parents as a private tutor. By this we do not mean to suggest that the teacher would actually succumb to such temptation and thereby compromise his public duties in favor of his private interests. The statute is entirely preventative in nature.

Again, the location of the lessons–whether on or off school property–would have no impact on the analysis. Also, as noted in Question 1, school resources should not be used. Accordingly, we find Section 112.313(7) would be violated were a teacher of art, music, drama, or dance to give private lessons for a fee to his or her own students, but would not be violated if such lessons were given on school property to students who are not in the teacher's classes, without using school resources.

Would a prohibited conflict of interest exist were a teacher to tutor students in a summer tutorial program initiated by the teacher and including students who were enrolled in that teacher's class during the preceding school year?

You state that the District currently sponsors certain summer tutorial programs at no charge to the student. Pursuant to their contract, teachers employed to teach in these programs receive supplemental pay from the District, and the curriculum is set by the District. Students in these programs may, you advise, be students who were enrolled in the teacher's class during the preceding school year. Under such circumstances no conflict would exist because the teacher has no contractual relationship outside that of his or her employment as a teacher.

You ask whether a conflict would exist were a teacher were to initiate such a program where a school does not offer a District-sponsored program. We decline to answer this question, inasmuch as it appears that the question is wholly hypothetical and that the matter will not even be considered until and unless a decision is made allowing private individual tutoring on school grounds. While we understand that every question seeking guidance for prospective conduct is to some degree speculative, too many facts are in doubt at this time for us to render an opinion. Therefore, we invite you to contact us (or our staff) for further advice if and when a more concrete proposal is under consideration.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 14, 2004 and RENDERED this 19th day of October, 2004.

^[1] Except for students of art, music, etc., which will be addressed in response to your Question No. 3.

^[2] School Board Policy 7.18 establishes requirements for the use of school facilities by community and commercial organizations. A rate schedule sets the fee for use of a classroom by a commercial entity at $20 per hour. Under the policy, the superintendent has discretion to reduce or waive the fee for any entity.

^[3]There is no indication that the school "regulates" the teachers.