CONFLICT OF INTEREST
TEACHER OFFERING SUMMER ART CAMP TO STUDENTS IN HER CLASSES
SUMMARY:
A prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were a teacher to offer a summer art camp, for a fee, to students in her school classes.
QUESTION:
Would a prohibited conflict of interest exist were a teacher to offer a summer art camp, for pay and on school grounds, to students assigned to her classes?
Your question is answered in the affirmative .
In the correspondence you have provided, you advise that you are the sole art teacher at an elementary school in Martin County. You state that last year you requested from the District, and received, approval to conduct a summer art camp on school grounds, for which you charge a fee. This year, the District has cautioned you that the Code of Ethics for Public Officers and Employees may be violated if students assigned to your own classes participate in the camp, prompting you to make this inquiry. You relate that you operate as a sole proprietorship and will rent space from the District to conduct the camp, which you refer to as "enrichment and not academic tutoring." You state you will charge a fee, and although the camp is open to children who do not attend your school, you expect the majority of camp attendees to come from your school. At this time, you relate, about 20 children are signed up for the program. You further inquire whether, if we find that having your own students participate in the camp would create a prohibited conflict, the conflict could be negated by your "pairing up" with a teacher from another school, who would teach your students while you teach hers. .
Section 112.313(7), Florida Statutes, 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, 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.
The first part of Section 112.313(7) prohibits you from having a contractual relationship with any business entity which is subject to the regulation of, or is doing business with, your agency.
Your situation is comparable to one we examined in CEO 04-17, where we dealt with questions regarding teachers performing engaging in private tutoring1. There we found, as we have in other opinions, that a teacher's agency is the school at which he or she is employed, and that even a self-employed person can be a "business entity," given the definition of that term found in Section 112.312(5), Florida Statutes2. Similarly, we find here that your agency is the school at which you teach, and that by operating as a sole proprietorship, you have a contractual relationship with a "business entity." However, as was the case in CEO 04-17, while the lease agreement you have with the District constitutes "doing business," your business entity will not be doing business with your agency (the school) but rather will be doing business with the school district. Accordingly, the first part of Section 112.313(7)(a) would not operate to prohibit the proposed summer camp.
The second part of Section 112.313(7)(a) prohibits you from having any contractual relationship which would create a continuing or frequently recurring conflict between your private interests and the performance of your public duties, or that would impede the full and faithful discharge of your public duties. This provision establishes an objective standard which requires an examination of the nature and extent of your duties together with a review of your 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).
In Question 3 of CEO 04-17, we said that a prohibited conflict of interest would be created should a teacher of music, dance, art, or drama also give private lessons, for a fee, to his or her own students, even where such lessons were not remedial in nature.
The requestor of that opinion suggested that permitting teachers of the arts to provide non-remedial "supplemental" tutoring to their own students presented less of a potential for conflict than would exist with respect to other disciplines, because the arts are not tested on statewide achievement tests; thus the motivation for a teacher to teach less effectively at school and thereby create a need for tutoring would be reduced. It was also suggested that because each artist/teacher generally has a particular method, style, artistic emphasis, or talent, teachers in these areas are unique, and if a parent sought extra art or music lessons for his or her child "in order to achieve greater artistic development," the parent may 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."
We rejected these arguments, finding that the fact that the lessons were not remedial in nature did not negate the conflict which would arise under the second part of the statute. We said that while a restriction on remedial instruction,
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.
We continued,
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.
We cannot discern any substantive difference between the facts you have provided and those of CEO 04-17. That your program is labeled an "enrichment," rather than "non-remedial, supplemental tutoring," and that it is conducted during the summer rather than after school are distinctions that do not address the underlying concern: that where a teacher is privately contracting with the parents of his or her students during the course of the school year, there is the potential for the teacher's responsibility to treat the child impartially to be impeded by the desire to maintain a harmonious and profitable relationship with the child and parents in his or her private endeavor. Nor is this concern obviated by having another teacher instruct your students while you teach hers, because doing so does not remove the potential for disparate treatment of students depending on whether they did or did not sign up for the camp.
Our finding here is consistent with our determinations in analogous circumstances. In CEO 82-39 we found a prohibited conflict of interest would be created were an auditor employed by the Department of Education ("DOE") to teach a course for a school district whose programs she audited. In CEO 94-4 we said that complaint investigators for the Office of Professional Practices Services within the DOE would be prohibited from providing training for local school districts, as the investigators' duty to conduct their investigations with impartiality could be compromised by their concern for satisfying or pleasing their private employers—the school districts employing them to provide training. And in CEO 98-1 we found that a prohibited conflict of interest would be created were a Fire Prevention Specialist employed by the State Fire Marshal's Bureau of Fire Prevention to provide training and seminars for the architects, engineers, and contractors whose work he inspected in his public capacity, as he would be in a position to review and critique the work of the same architects, engineers, electrical contractors, and businesses for which he proposed to conduct his training and seminars.
Accordingly, we find that while you would not be prohibited from operating, for a fee, a summer art camp, a prohibited conflict of interest under Section 112.313(7), Florida Statutes, would be created were you to contract with parents of students who are in your classes to have their children participate in your summer art camp.
ORDERED by the State of Florida Commission on Ethics meeting in public session on June 4, 2010 and RENDERED this 9th day of June, 2010.
__________________________
Roy Rogers
Chairman
[1] In fact, your circumstances are quite similar to those raised in Question 4 of that opinion, which we did not answer, because in that instance the question appeared to be wholly hypothetical.
[2] Defining "business entity" as, "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.]