CONFLICT OF INTEREST

TEACHER EMPLOYED AS ATTORNEY

To: Thais Alvarez (Miami-Dade Public Schools)

SUMMARY:

Section 112.313(7)(a), Florida Statutes, would prohibit a public school teacher from employment—as general counsel to a non-profit organization or as a sole practitioner—that would include representation in lawsuits against the school board/district in the district where she is employed. CEO 82-7, CEO 88-8, CEO 10-15, and CEO 13-21 are referenced.¹

QUESTION:

Would a prohibited conflict of interest be created if a public school teacher were to be employed as general counsel or as a sole practitioner to represent a non-profit organization or individuals filing lawsuits against a teachers' union and the school board/district in the district where she is employed as a teacher?

Your question is answered, in part, in the affirmative.

In your inquiry and further information provided to our staff, you state that you are employed as a teacher by the District School Board of Miami-Dade County and, in that position, you teach English to speakers of other languages (ESOL) to middle school students. You further state that you are an attorney licensed in Florida and that you would like to accept private-capacity employment as general counsel for a non-profit organization (Educators Educating Educators, Inc.). You explain that this organization provides information to teachers and parents related to "the politics behind the policies" of public education. You state that, as general counsel, you would provide legal advice and representation to directors and officers of the organization in litigation concerning matters related to Florida education policies and you would expect to represent individuals, including yourself and other teachers, in lawsuits alleging unfair labor practices against a teachers' union and the District School Board. You state that the organization is not regulated by or doing business with your school or the School Board/District. Alternatively, you would like to provide legal services as a sole practitioner representing individuals, including yourself, and that such services could involve lawsuits against a teachers' union and the District School Board. You ask what, if any, Code of Ethics restrictions would apply if you were to be employed or to enter into contracts as stated above.

Your scenario implicates Section 112.313(7)(a), Florida Statutes, which states:

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 this provision would prohibit you from having any employment or contractual relationship with a business entity or agency that is regulated by or is doing business with your agency. In CEO 10-15, we found 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.² Therefore, your public agency, for purposes of this provision of the Code of Ethics, would be the school where you teach and your private-capacity business entity employers would be the organization employing you as general counsel and your personal law office. We find that you would have a prohibited conflict of interest under the first part of Section 112.313(7)(a) if the school where you teach were to regulate or to do business with the organization or with your personal law office. Since you state that neither your school nor the School Board/District regulates or does business with the organization or your personal law office, we find your proposed legal employment would not create a prohibited conflict under the first part of Section 112.313(7)(a), Florida Statutes.

The second part of Section 112.313(7)(a) prohibits any employment or contractual relationship that would give rise to an actual conflict of interest and establishes an objective standard which requires an examination of the nature and extent of the public employee's duties together with a review of her private employment to determine whether the two are compatible, separate, and distinct or whether they coincide to create a situation that tempts dishonor. Zerweck v. State, Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982). Thus, the relevant issue would be whether your employment or contractual relationship as an attorney in the scenario you describe would create a continuing or frequently recurring conflict or would impede the full and faithful discharge of your duties as a public school teacher. We find that your employment as general counsel to the organization, if limited to providing representation of parties in litigation against a teachers' union or other private entity,³ would not create a recurring conflict or impede discharge of your teaching duties. However, if you were to represent parties in lawsuits or otherwise become involved in litigation against the School Board/District, the resulting adversarial relationship with the School Board/District, which is your ultimate employer, would potentially affect your employment status and your ability to fully discharge your duties in your teaching position. CEO 82-7 and CEO 88-8. We find that, insofar as your legal employment would involve representation of parties in lawsuits against the School Board/District, such employment would create a prohibited conflict of interest under the second part of Section 112.313(7)(a).

Thus, we find that you would have a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, if you were to represent individual clients or to be employed as general counsel for a non-profit organization if you or the organization were to become involved in lawsuits against the School Board/District.

Your inquiry is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 21, 2016, and RENDERED this 26th day of October, 2016.

____________________________________

Matthew F. Carlucci, Chair

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

^[2] "Agency" is defined in Section 112.312(2), Florida Statutes, as "any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative."

^[3] However, we find that a prohibited conflict would be created if any of the parties (your clients) were also students in your classes (or their parents or guardians) or District employees subordinate to you. See CEO 13-21 and opinions cited therein.