To: Name withheld at the person's request (Bartow)

SUMMARY:

A continuing or frequently recurring conflict of interest and an impediment to the full and faithful discharge of public duties is created when a school board member is the president and sole owner of a corporation that goes into a charter school on a weekly basis to provide career preparation coaching to its students. The school district has an ongoing obligation to oversee the operations of the school whose charters they approve, and this obligation is potentially compromised when a school board member's corporation contracts with a charter school. CEO 06-23 is referenced, as well as CEO 09-23 and CEO 97-7.

QUESTION:

Would a prohibited conflict of interest be created were a member of a district school board to be president of a corporation providing services to students at a charter high school in the district?

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

In your letter of inquiry, you explain that this opinion is sought on behalf of …, who was elected to the Polk County School Board in November 2008.  In his private capacity, the School Board member is president and sole owner of a corporation that assists Lake Wales High School (LWHS) students in obtaining information about standardized testing, college admission, financial aid, and scholarships.   LWHS is a charter high school whose conversion charter was first approved by the School Board in October 2003.¹  In June 2009, the School Board member's company entered into a contract with LWHS to provide 35-40 hours a month (8-10 hours a week) of career preparation coaching to LWHS students.  This contract is valued at $30,000 and is scheduled to terminate in June 2010.  You ask us to opine on whether it creates a conflict of interest prohibited by the Code of Ethics for Public Officers and Employees.

The applicable statute is Section 112.313(7)(a), Florida Statutes, which provides:

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 or she 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 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)(a), Florida Statutes (2009).]

The first part of this provision prohibits a School Board member from having a contractual relationship with a business entity that is doing business with or regulated by the School Board, while the second part of the statute prohibits contractual relationships that create continuing or frequently recurring conflicts between private interests and public duties, or which impede the full and faithful discharge of public duties.

In CEO 06-23, Footnote 5, we noted that the first part of Section 112.313(7)(a) was not applicable to a situation where a school board member was employed as an assistant principal at a charter school sponsored by the school board, because she was employed by the management company that was doing business with a second company, and that second company was the entity that entered into the contract with the school board.²  Under the same rationale articulated in CEO 06-23, since it is the School Board member's corporation and not him personally who has entered into a contractual relationship with LWHS, the first clause of Section 112.313(7)(a), Florida Statutes, is not applicable to the situation you described in your letter of inquiry. 

However, CEO 06-23 found a prohibited conflict of interest under the second part of Section 112.313(7)(a), Florida Statutes, due to the responsibilities, obligations, and potentially differing interests between the school district and the charter school.  See also CEO 97-7 and CEO 09-23.  Based upon the rationale of the cited opinions, we believe that a prohibited conflict of interest is created under the second part of Section 112.313(7)(a), Florida Statutes, where the School Board member is the sole owner and officer in a corporation that goes into the charter school on a weekly basis to provide career preparation coaching to high school students attending the school.  Although your correspondence seems to question whether school boards regulate or do business with charter schools, there is no better way to characterize the statutory and regulatory relationship set forth in Section 1002.33, Florida Statutes.  Thus, we view it as an impermissible conflict for a School Board member to spend approximately 25% of the work week performing contracted services at a charter school when the School Board granted the school's charter and continues to oversee its operations.

            Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 16, 2010 and RENDERED this 21st day of April, 2010.

__________________________

Roy Rogers

Chairman

^[1] See http://www.lwcharterschools.com/history/

^[2]CEO 06-23 cites a long line of precedent that holds that a prohibited conflict of interest is not created under the first part of Section 112.313(7)(a), when the public officer has a contractual relationship with a business entity, and that business entity has a contractual relationship with another business entity, and the second business entity is doing business with or regulated by the public officer's agency.