CONFLICT OF INTEREST

TEACHER SELLING SHIRTS AND OTHER ITEMS

To: Name withheld at person’s request (Riviera Beach)

SUMMARY:

Sections 112.313(3) and 112.313(7)(a), Florida Statutes, would limit a public school teacher in marketing products offered for sale by a company she co-owns. CEO 92-6, CEO 98-25, CEO 04-17, CEO 10-15, CEO 12-23, and CEO 13-21 are referenced.¹

QUESTION:

Would a prohibited conflict of interest be created if a public school teacher were to sell, through a company she co-owns, shirts and other items inside and outside the school and the school district where she is employed?

Under the circumstances presented, your question is answered as set forth below.

In your letter of inquiry and a subsequent email, you state that you are employed as a teacher at a high school in the Palm Beach County School District. You state that you and your fiancé (also employed as a teacher at the high school) co-own a company that markets monogrammed and embroidered shirts and other items and that your company proposes to offer these products for sale to the District, to the high school, and to individual employees of the high school, as well as to students enrolled in the high school and their parents.

Your scenario implicates Sections 112.313(3), and 112.313(7)(a) Florida Statutes. Section 112.313(3) states:

DOING BUSINESS WITH ONE’S AGENCY.--No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer’s or employee’s spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer’s or employee’s spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer’s or employee’s own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she is serving as an officer or employee of that political subdivision.

This provision prohibits, among other things, a public employee or her business from providing goods, services, or realty to her public agency or to any part of her political subdivision. Absent the applicability of an exemption, this provision would prohibit you or your company from selling to the high school and to the District or any other school within the District.²

However, an exemption in Section 112.313(12)(f), Florida Statutes, regarding transactions of less than $500 in the aggregate per calendar year, could apply to negate the Section 112.313(3) prohibition if you were to be compensated less than $500 (in total) for such merchandise during a calendar year. See CEO 98-25. Also, the exemption in Section 112.313(12)(b) could be available if you were to do business (even in excess of $500) under a system of sealed competitive bidding with the business going to the lowest or best bidder, if you were to meet certain other requirements in that exemption. See CE Form 3A, available at www.ethics.state.fl.us. Note that this process must be sealed competitive bidding rather than an RFP (Request for Proposals), RFQ (Request for Qualifications), or other method of procurement which may at times be referred to as “bidding.”

The proposed sales of your company’s products to students in your classes (or to their parents) implicates 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.

The first part of Section 112.313(7)(a) would prohibit you from having any employment or contractual relationship with a business entity (e.g., your company) doing business with (selling to) your agency (the high school). CEO 92-6. The second part of Section 112.313(7)(a) would prohibit you from selling to students whom you teach or for whom you have responsibilities, or their parents, because, as the Commission has stated in similar contexts, marketing to students in your classes (or their parents) could undermine your objectivity in your public capacity toward those students. CEO 12-23 and CEO 13-21. You also are prohibited from selling to any school employees whom you may supervise or evaluate. CEO 92-6. The exemptions in Section 112.313(12), Florida Statutes, as explained above, can apply as to your sales to the District, to the high school, or to other parts of the District, to negate conflict under Section 112.313(7)(a).

Thus, the marketing activities you propose to undertake within the District would be allowed if you or your company do not sell to the high school where you are employed, to the District, or to other schools within the District. You or your company could sell merchandise to other school districts or to schools in other districts. Also, you or your company could sell to customers who pay with their personal funds, without limitation, unless they are students in your classes or in your public charge (or their parents) or if they are persons you supervise or evaluate in your public employment.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 17, 2015, and RENDERED this 22nd day of April, 2015.

____________________________________

Linda McKee Robison, Chair

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

^[2]We find that your “agency” is the high school and that the District is your political subdivision. CEO 04-17, CEO 10-15, Section 1.01(8), Florida Statutes.