CONFLICT OF INTEREST

TEACHER SECONDARILY EMPLOYED PROVIDING
PROGRAMS TO STUDENTS

To:        Name withheld at person's request (Palm Beach County)

SUMMARY:

A prohibited conflict of interest exists where a public school teacher/support facilitator/department chair provides services to students of his public school via his private capacity, paid therapy and counseling. However, a prohibited conflict will not exist where the person provides the services as part of his public school employment. CEOs 12-23, 10-15, and 04-17 are referenced.¹

QUESTION:

Does a prohibited conflict of interest exist where a public school teacher, support facilitator, and middle school department chair conducts an after-school therapeutic social skills program for students, where the program includes students of the teacher's school?

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

In your letter, you write that you inquire in behalf of the School Board of Palm Beach County and with the permission of . . .(teacher), who serves as a middle school teacher for ESE (exceptional student education) students, an ESE support facilitator, and an ESE department chair for his middle school.² In addition, you state that the teacher is the founder, president, and fifty percent shareholder of a for-profit corporation which provides an after-school social skills program (fee-based)³ for autism spectrum students, and that the program includes students who are in the teacher's ESE elective public school class or who attend the same school where the teacher teaches, but who are not in his class. More particularly, regarding the program, you relate that it meets once a week for an hour and includes 29 students between the ages of 6-14, that students in the program from schools other than the teacher's school are referred to the program through community resources, including parents, mental health care providers, and a center for autism and related disorders, that there are few professionals in the Palm Beach County area with the requisite training and experience to design and implement a therapeutic social skills program for these children and their families, and that to the teacher's knowledge his company is the only group of its kind for elementary and middle school aged children in the County, with some children traveling two hours, one way, to participate. Further, you state that there are only five children in the program who attend the middle school (a "lottery only" middle school) where the teacher teaches, that only three of the five are in classes taught by the teacher or regarding which he is a support facilitator, and that all five were involved in the program since they were in elementary school, long before they applied to the middle school, and that neither the teacher nor his company will directly promote the program to any of the students who attend the middle school, or to their parents. Also, you state that the program services provided to students by the teacher and his corporation amount to therapy and counseling, not teaching or tutoring.

Section 112.313(7)(a), Florida Statutes, is at issue regarding your inquiry. It 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.

In CEO 12-23 (teachers and coaches secondarily employed to tutor/instruct students and offering additional programs to students) and other decisions,⁴ we have found that a prohibited conflict of interest would be created under the statute were a teacher or other public school employee to work privately with students in his public charge, or to seek to engage students in his public charge (or their parents) to sign up for programs of his which would take place after the students ceased to be in his public charge, reasoning that he would be tempted to conduct himself less than objectively in his public capacity toward students, depending on whether they were part of his private work or signed up for his later programs.

We find that the instant inquiry is no different, and that a prohibited conflict exists where students of the teacher's school⁵ are in his corporation's program. The same temptation to a lack of objectivity is present.⁶

However, we also find that a prohibited conflict of interest will not exist were the School District to provide the program services and the teacher, as an additional part of his public capacity duties and for additional public sector pay, to deliver the services, instead of through his private corporation. CEO 12-23, note 4. In making this finding, we recognize the value of the services being provided and acknowledge their significance to the more complete education of special needs children, realizing that the services often cannot be provided in close proximity to a student's location.

Accordingly, we find that a prohibited conflict of interest exist where students from the teacher's school also are in a program of his corporation; but that a prohibited conflict will not exist if the teacher performs the additional services for the students as part of his public school employment.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 13, 2013, and RENDERED this 18th day of December, 2013.

____________________________________

Morgan R. Bentley, Chairman

^[1] Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).

^[2] The teacher teaches only at one school (a middle school), he teaches two ESE classes, is a support facilitator in three classes, and is a case manager for approximately twenty students. As a support facilitator, he provides ESE services to students with disabilities in mainstream classes and ensures compliance with their Individual Education Plans (IEPs); however, he is not the primary classroom teacher in these classes, but is an equal partner in instruction of these students, their grading, parent communication, and lesson planning. As his school's ESE department chair, the teacher acts as a liaison between the school's administration and its ESE teachers, and works with classroom teachers to identify and solve problems relating to their students with disabilities.

^[3] The teacher personally provides therapeutic services during the corporation's program sessions and is paid by the corporation; parents pay the corporation, per session, for their child's participation in the program; and parents are asked to complete a registration form for each session.

^[4] CEO 10-15 (teacher offering summer art camp to students in her classes); CEO 04-17 (teachers engaged in private tutoring activities).

^[5] In the prior decisions, the temptation to a lack of objectivity was grounded in students being in a teacher or coach's class, on his sports team, or in his group instruction. In the instant matter, we find that this temptation extends to all students in the teacher's middle school, given the breadth of his several ESE roles at the school.

^[6] We have not overlooked the distinction you make between teaching or tutoring and therapy or counseling. However, we do not believe that the distinction is material to the teacher's situation, given that the gravamen of our finding is private employment intersecting public responsibility, a dynamic present regardless of the type or characterization of the private, paid service delivered.