CEO 81-5 -- January 22, 1981

VOTING CONFLICT OF INTEREST

SCHOOL BOARD MEMBER EMPLOYED AS SUPERVISOR OF REGIONAL DIAGNOSTIC AND LEARNING RESOURCE CENTER

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

SUMMARY:

No prohibited conflict of interest is created when a member of a district school board is employed by another district school board as supervisor of a regional diagnostic and learning resource center, even though the center serves five school districts, including the one on whose board the petitioner sits. Analyzing the situation under Section 112.313(7), F. S., the employing School Board neither is subject to the regulation of nor is doing business with the Board of which the petitioner is a member. Also, there appears to be no impediment to public duty as no action he takes as a School Board member could affect his employment with the Center, which is operated by the other school district under a Department of Education grant and under guidelines set by that Department. In addition, no potential conflict would result from contact the petitioner might have in his capacity as Director of the Center with administrative or instructional personnel of the school district on whose board he sits, as he would not stand to benefit privately from such contact.

QUESTION 1:

Does a prohibited conflict of interest exist where you, a member of a District School Board, are employed by another District School Board as Supervisor of a regional diagnostic and learning resource center?

This question is answered in the negative.

In your letter of inquiry you advise that recently you were elected to the District School Board of Flagler County and that you are employed by the District School Board of Putnam County as Supervisor of the Florida Diagnostic and Learning Resources System, Putnam Associate Center, at the North East Florida Educational Consortium. The Center is one of several regional centers established and operated either directly or through grants by the Florida Department of Education (D.O.E.) pursuant to Section 229.832, F. S., to assist in testing and evaluating exceptional students, to make referrals for necessary instruction and service, and to facilitate the provision of instruction and services to exceptional students. The area served by the Center includes five counties in addition to Flagler County, with the Center operating to assist the School Districts in those Counties to attain a goal of full educational opportunities for exceptional students. In a telephone conversation with our staff you advised that you and the other employees at the Center were hired by the Putnam County School Board, which serves as fiscal agent with D.O.E. in all matters related to the project. The funding for all salaries and project activities is derived solely from the State and Federal governments, with no contribution from the District School Boards in the area served. As Director of the Center, you advise that you are responsible for the organization and activities of the Center as it serves the directors and teachers of exceptional student programs in the several School Districts.

The Center is located with the North East Florida Educational Consortium in Putnam County, the Consortium having been established as a separate entity by cooperative agreements among eight School Districts, including Flagler County, to provide joint programs and services to the Districts pursuant to Section 230.23(12), F. S., and State Board of Education rules. More specifically, the Consortium centralizes purchasing and other services for the Districts to enable them to minimize the costs of those services. Like the personnel of the Center, the personnel of the Consortium are employees of the Putnam County School Board, which sets the compensation and benefits of its employees and which acts as fiscal agent for the Consortium. Within that school district, the Executive Director of the Consortium supervises your performance as Director of the Center. However, unlike the Center, funding of the Consortium is contributed by the participating School Districts.

Finally, you have advised that, in addition to adopting the annual resolution by which the School District joins the Consortium, the Flagler County School Board must vote on contracts for the approval of the purchase and provision of materials, supplies, and services from the Consortium to the District. As you participate only in the work of the Center and not the Consortium, you advise, you are not involved through your employment in the procurement or contracting of materials, supplies, or services to the Flagler County School District. In contrast, the School Board's only involvement with the Center is the approval of a joint resolution pledging the District's cooperation with the Florida Diagnostic and Learning Resources System program.

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

EMPLOYEES HOLDING OFFICE. -- No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his employer while, at the same time, continuing as an employee of such employer. [Section 112.313(10)(a), F. S.]

We find that this provision does not apply to your situation, as you are an employee of the Putnam County School Board, not the Flagler County School Board.

The Code of Ethics also 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 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), F. S.]

This provision prohibits you from being employed by an agency which is subject to the regulation of, or which is doing business with, the Flagler County School Board. Clearly, the Putnam County School Board is not regulated by the School Board of which you are a member. Nor do we find that the Putnam County School Board is "doing business with" the Flagler County School Board by virtue of the joint resolutions of the School Boards through which they have agreed to cooperate in providing certain services. In previous opinions, we have advised that contracts between governmental agencies for the provision of services are not contemplated by this statutory language. CEO's 76-2 (Question 10), 76-77, and 80-5.

Section 112.313(7)(a) also prohibits a public officer from having any employment that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his duties. It is apparent that no action of your School Board relating to the Center could affect your position with the Center, which is operated by the Putnam County School District under a D.O.E. grant and under D.O.E. guidelines. Nor could any of the decisions of your School Board concerning the Consortium affect your position with the Center, which has been created independently of the Consortium. In addition, we do not perceive that a potential conflict of interest would result from contact you may have with administrative or instructional personnel of the Flagler County School District in your capacity as Director of the Center, as you would not stand to benefit privately from such contact. In this respect your situation differs from that in CEO 80-68 in which a School Board member sought to act as an insurance broker for an insurance company doing business with School District employees. Rather, in your situation, there would seem to be a unity of interest arising from a common goal of better education for exceptional students.

Accordingly, we find that no prohibited conflict of interest exists when you are employed as Director of a regional diagnostic and learning resource center while serving as a member of a District School Board other than the School Board which employs you.

QUESTION 2:

Would a voting conflict of interest be created were you to vote as a Flagler County School Board member on contracts and letters of agreement presented to the Board for approval of the purchase and provision of materials, supplies, and services from the North East Florida Educational Consortium for the School District?

This question is answered in the negative.

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

Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143, F. S.]

Under the circumstances you have presented, it does not appear that you would gain from any measure considered by the School Board concerning the Consortium. As discussed above, your employment with the Center is independent of the operations of the Consortium. Nor would any measure concerning the Consortium inure to the special gain of your employer, the Putnam County School Board.

Accordingly, we find that no voting conflict of interest would be created within the terms of Section 112.3143, F. S., were you to vote on contracts and letters of agreement presented to the School Board for approval of the purchase and provision of materials, supplies, and services for the School District from the Consortium.