CONFLICT OF INTEREST;
VOTING CONFLICT; DUAL PUBLIC EMPLOYMENT

SCHOOL BOARD MEMBER SERVING AS
TRUSTEE OF STATE COLLEGE

To: R. Wesley Bradshaw, Attorney for School Board of Citrus County

SUMMARY:

A school board member is not prohibited from serving on the board of trustees of a state college, no voting conflict will be created for the member in either capacity regarding votes/measures of either board affecting the other agency, and the dual public employment prohibition of Section 112.3125, Florida Statutes, does not prohibit the holding of the positions. CEOs 81-19, 92-39, and 10-2 are referenced.¹

QUESTION 1:

Does a prohibited conflict of interest exist where a member of a district school board also serves as a member of the board of trustees of a state college?

This question is answered in the negative.

In your letter of inquiry and accompanying materials, you relate that a member of a district school board also serves as a member of the board of trustees of a state college (formerly, a community college), a public institution. In addition, you state that previously there existed an agreement between the school board and the college in regard to the amount of dual enrollment reimbursement that the college would pay to the school board, that currently the college is not required to pay any monies in regard to dual enrollment reimbursement, but that there exist negotiations between the school board and the college to come to a figure for reimbursement. Further, you relate that the member is not a teacher at the college, that she receives no remuneration for her trustee service but that she receives reimbursement for expenses, and that as a school board member she is paid a statutory sum each year.

Statutes within the Code of Ethics provide:

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. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator’s place of business or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment. [Section 112.313(3), Florida Statutes.]

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. [Section 112.313(7)(a), Florida Statutes.]

We find that the member's holding of both positions is not prohibited by Section 112.313(3). Assuming in argument that the school board/district or the college would be providing services, one to the other, neither is a "business entity," which is an element essential to applicability of the statute. Rather, both are government "agencies." See the applicable definitions, respectively, at Sections 112.312(5) and 112.312(2), Florida Statutes.² In addition, in accord with previous findings of ours, we find that the member's holding of both positions is not prohibited by Section 112.313(7)(a). The statute requires that a public officer hold "employment" or a "contractual relationship," neither of which is present when a public officer holds a second "office." See, for example, CEO 81-19 (city clerk serving on municipal pension board) and CEO 92-39 (city council member, assistant school superintendent).

Question 1 is answered accordingly.

QUESTION 2:

Will the member be presented with a voting conflict regarding measures/votes of the school board affecting the college or regarding measures/votes of the college's board of trustees affecting the school board/district?

This question is answered in the negative.

The voting conflicts law provides:

VOTING CONFLICTS.—No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer’s interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her 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(3)(a), Florida Statutes.]

We find that the member will not be presented with a voting conflict under Section 112.3143(3)(a) regarding votes of either agency which affect the other agency.³ Because the member receives no remuneration for her service as a college trustee, we find that the college is not a principal by whom she is retained. See, for example, CEO 10-2. Further, measures/votes affecting the college or the school board/district do not, in and of themselves, involve special private gain or loss, as required under the statute. Rather, the gain or loss would inure to a public agency. Also, Section 112.3143(3)(a) expressly exempts from its requirements measures/votes affecting a principal by whom one is retained, if the principal is a public "agency";⁴ and both the school board/district and the college are encompassed within the applicable definition of "agency" codified at Section 112.312(2), Florida Statutes.⁵

Question 2 is answered accordingly.

QUESTION 3:

Does the member's holding of both positions constitute dual public employment prohibited by Section 112.3125, Florida Statutes?

This question is answered in the negative.

Section 112.3125 provides:

DUAL PUBLIC EMPLOYMENT.--

(1) As used in this section, the term "public officer" includes any person who is elected to state or local office or, for the period of his or her candidacy, any person who has qualified as a candidate for state or local office.

(2) A public officer may not accept public employment with the state or any of its political subdivisions if the public officer knows, or with the exercise of reasonable care should know, that the position is being offered by the employer for the purpose of gaining influence or other advantage based on the public officer's office or candidacy.

(3) Any public employment accepted by a public officer must meet all of the following conditions:

(a)1. The position was already in existence or was created by the employer without the knowledge or anticipation of the public officer's interest in such position;

2. The position was publicly advertised;

3. The public officer was subject to the same application and hiring process as other candidates for the position; and

4. The public officer meets or exceeds the required qualifications for the position.

(4) A person who was employed by the state or any of its political subdivisions before qualifying as a public officer for his or her current term of office or the next available term of office may continue his or her employment. However, he or she may not accept promotion, advancement, additional compensation, or anything of value that he or she knows, or with the exercise of reasonable care should know, is provided or given as a result of his or her election or position, or that is otherwise inconsistent with the promotion, advancement, additional compensation, or anything of value provided or given an employee who is similarly situated.

(5) This section may not be interpreted as authorizing employment that is otherwise prohibited by law.

We find that Section 112.3125 does not apply to the member's situation. Neither the position on the school board nor the position on the college's board of trustees constitutes "public employment."

Question 3 is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on September 11, 2015, and RENDERED this 16th day of September, 2015.

____________________________________

Stanley M. Weston, Chair

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

^[2]Statutes provide:

"Business entity" means any corporation, partnership, limited partnership, company, limited liability company, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state. [Section 112.312(5), Florida Statutes.]

"Agency" means any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university. [Section 112.312(2), Florida Statutes.]

^[3]Similarly, we find that the member will not be presented with a conflict under Section 112.3143(4), Florida Statutes, which concerns "participation" by appointed public officers in matters which would inure to the special private gain or loss of themselves or their principals, regarding measures/votes in her college trustee capacity.

^[4]There is no indication that any votes would affect the private economic interests of the member. In her college capacity, she is unpaid; in her school board capacity, her salary is set by statute.

^[5]You also inquire as to Section 286.012, Florida Statutes, which requires voting by certain officers unless there is a voting conflict or what appears to be a possible voting conflict. Assuming in argument that the statute applies to district school board members and state college district trustees, rather than only to "state, county, or municipal" board members, as expressed in the statute, we do not find that the member will be presented with an apparent possible conflict of interest regarding measures/votes of the school board affecting the college or measures/votes of the college's board of trustees affecting the school board/district, for the reasons set forth above regarding Section 112.3143(3)(a).