CONFLICT OF INTEREST

SCHOOL DISTRICT EMPLOYEE CONTRACTING TO PROVIDE
TECHNICAL SERVICES TO CHARTER SCHOOL

To: Mr. Larry Tranberg (Jensen Beach)

SUMMARY:

Under the circumstances presented, a school district employee will not have a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, if he accepts secondary employment with a charter school chartered by the district school board. The district employee’s agency is the operations department, not the school board which is a party to the agreement with the charter school. Moreover, the district employee is not in a position to influence the charter agreement and his public responsibilities will not be affected if he accepts the proposed secondary employment. Referenced are CEO 04-17 and CEO 10-15.

QUESTION:

Will a prohibited conflict of interest be created under Section 112.313(7)(a), Florida Statutes, if a school district employee contracts to provide technology services to a charter school chartered by the district school board?

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

Through your letter of inquiry and correspondence with our staff, you state that you are a Desktop Support Technician with the Martin County School District. In that capacity, you indicate you provide technical support to specific public schools within the District. You state that you and the other support technicians are assigned particular schools and sites throughout the District, and that you respond to technology-related issues arising in the locations to which you have been assigned.

You state that a charter school within the District—the Hope Center for Autism—has asked you to provide technical services on nights and weekends. You indicate that the charter school has a funding arrangement with the Martin County School Board through a charter school agreement. You have included the agreement with your submitted materials. You indicate the agreement is renegotiated every three years by the Exceptional Student Education Department, which is a part of the District’s Central Office but is separate from the Operations Department, where you work. You state your public responsibilities do not include negotiating or renewing the School Board’s agreement with the charter school.

The agreement itself does not mention the level of technical support which the District must provide to the charter school. Because of this, you state the degree of technical support which the District must offer is uncertain. You indicate the only technology-related service which you are certain the District must provide to the charter school is access to the student information system mainframe. You indicate that, currently, the charter school so seldom requests technical assistance that the District has not assigned the charter school to any particular support technician. You relate that in the rare instances where the charter school asks for technical assistance, it is assigned to the first technician available. You state that, in the future, the charter school intends to further limit its requests to the District by hiring its own technical support staff member to handle the bulk of its technology concerns.¹ It is this work with the charter school which has been offered to you.

You inquire whether you will have a prohibited conflict of interest if you accept employment with the charter school, considering that it has a contractual arrangement with the School Board through the charter agreement. The provision relevant to your inquiry 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 interest 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 the statute prohibits a public officer or employee (e.g., a school district employee) from being employed by, or having a contractual relationship with, a business entity which is being regulated by, or which is doing business with, his public agency. Here, you indicate that you work for the Operations Department of the District’s Central Office. In the past, when dealing with employees of a school district, we have found the employee’s agency to be the particular entity where he is employed, as opposed to the district as a whole. See CEO 04-17 and CEO 10-15 (both opinions finding a teacher’s agency to be the school where he or she is employed). Therefore, the Operations Department is your agency. Under the facts which you relate, the charter school has not entered into a charter agreement with the Operations Department, but with the District’s School Board, which is an agency that is separate and distinct from your own. Because the charter school has not entered into a contractual arrangement with your agency, you will not be in violation of the first part of Section 112.313(7)(a) if you accept its employment offer.

The second part of Section 112.313(7)(a) prohibits a public officer from having 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 will impede the full and faithful discharge of his public duties. We do not find that your situation triggers the second part of the statute. There are three reasons why.

First, even if you accept employment with the charter school, you will not be in a position to affect its agreement with the School District. As a Desktop Support Technician, you provide technical support and assistance. You indicate your responsibilities do not include renegotiating the District’s contracts with charter schools. In fact, you state a separate Department within the District’s Central Office renegotiates the charter agreement between the District Board and the charter school involved here. You state you do not—and have never had—any responsibilities concerning such negotiations. Accordingly, even if you accept employment with the charter school, you will not be able to use your public position to benefit the charter school if the agreement is ever renegotiated.

Second, it does not appear that accepting employment with the charter school will impede your ability to perform your public duties. You indicate the charter agreement does not specify the degree of technical support that the District must provide to the charter school. You indicate the only certainty is that the District will need to assist the charter school with maintaining the student information system mainframe.² However, even assuming that the District assigns you to perform services at the charter school, you will be providing services for the mutual benefit of the charter school and the District. Because the two entities will not be at cross purposes—at least on the issues of technical assistance—we do not find your public duties will be compromised if you accept secondary employment at the charter school.

Third, you indicate that in the event that you begin to work for the charter school, you will ask that another technician be assigned the charter school’s requests for technical assistance from the District. This further demonstrates a lack of any conflict with your public duties.

Accordingly, under the circumstances presented, we find that no prohibited conflict of interest will exist under Section 112.313(7)(a), Florida Statutes, if you accept secondary employment with the charter school while maintaining your position with the School District.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 12, 2014, and RENDERED this 17th day of December, 2014.

____________________________________

Linda McKee Robison, Chair

^[1]You indicate this will include building the charter school’s support network, buying and installing servers, personal computers, and operating equipment, wiring network jacks, and conducting maintenance on its equipment.

^[2]Because the charter agreement does not specify the technical services that the District is obligated to provide to the charter school, it does not appear the charter school will be paying you to perform any services that the District already is obligated to perform, through you or other District employees. And, you do not indicate you have any responsibility as a District employee to recommend or determine what services the District is required to provide to the charter school.