CEO 76-53 -- March 16, 1976
CONFLICT OF INTEREST
DEPARTMENT OF EDUCATION EMPLOYEE SELLING TO STATE AGENCIES
To: (Name withheld at the person's request.)
Prepared by: Gene Rhodes
SUMMARY:
An employee of the Bureau of Finance and Management Services of the State Department of Education who privately sells roof maintenance products is not prohibited from selling to the Department of Education, to the Division of Universities, or to other state agencies inasmuch as each constitutes an "agency" distinct from the Bureau of Finance and Management Services pursuant to the definition of "agency" contained in Fla. Stat. s. 112.312(2)(1975). Nor is he prohibited from making such sales to private schools within the state inasmuch as his agency, the bureau, exercises no regulatory authority over private institutions. A conflict of interest would exist, however, were he to solicit sales from district school boards because his agency, the Bureau of Finance and Management Services, regulates school boards in the sense that the bureau may recommend the withholding of monthly allocations to require compliance with state regulations.
QUESTIONS:
1. Would a prohibited conflict of interest be created were I, an employee of the Department of Education, to sell roof maintenance products to the Department of Education?
2. Would a prohibited conflict of interest be created were I, an employee of the Department of Education, to sell roof maintenance products to the Division of Universities?
3. Would a prohibited conflict of interest be created were I, an employee of the Department of Education, to sell roof maintenance products to other state agencies?
4. Would a prohibited conflict of interest be created were I, an employee of the Department of Education, to sell roof maintenance products to private schools throughout the state?
5. Would a prohibited conflict of interest be created were I, an employee of the Department of Education, to sell roof maintenance products to the district school boards of this state?
Question 1 is answered in the negative.
Your letter of inquiry advises us that you are a full-time employee of the State of Florida, Department of Education (DOE), serving in the Division of Public Schools, Bureau of Finance and Management Services. You are considering a part-time position as a sales representative with a building maintenance firm in which you anticipate selling roof maintenance products including roof coatings, blacktop sealer, paint, and masonry coatings. Your bureau does not purchase or make recommendations to purchase any of the products which you contemplate selling.
The Code of Ethics for Public Officers and Employees provides in relevant part:
DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his 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 his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision . . . . [Emphasis supplied; Fla. Stat. s. 112.313(3)(1975).]
The emphasized portion of the above-quoted provision prohibits a state employee from selling goods or services to his own agency. For purposes of the Code of Ethics, your agency is the Bureau of Finance and Management Services. See Fla. Stat. s. 112.312(2)(1975). Any of the agencies within DOE which are potential buyers themselves or are responsible for purchasing the products you wish to sell are agencies separate and distinct from your agency, the Bureau of Finance and Management Services. Accordingly, you are not prohibited by s. 112.313(3) from selling products to DOE while concurrently being employed by the Bureau of Finance and Management Services.
The Code of Ethics further provides:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- (a) 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 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Emphasis supplied; Fla. Stat. s. 112.313(7)(1975).]
The italicized portion of the above-cited provision prohibits a public employee from having employment or a contractual relationship with a business entity which is doing business with his agency. Again, your agency is not involved either in purchasing or recommending the purchase of the products you anticipate selling. Therefore, the business entity for which you will act as sales representative will not be doing business with your agency. Consequently, you are not prohibited from selling merchandise to DOE while concurrently being employed by the Division of Finance and Management Services.
Question 2 is answered in the negative.
The Bureau of Finance and Management Services and the Division of Universities are governmental entities within the Department of Education. For purposes of the Code of Ethics, they are separate agencies pursuant to Fla. Stat. s. 112.312(2)(1975). This being the case, this question is substantially the same as question 1 above, the rationale of which is equally applicable to this inquiry. Your question is answered accordingly in the negative.
Question 3 is answered in the negative.
You have advised us that your agency, the Bureau of Finance and Management Services, does not regulate any state agencies. Pursuant to s. 112.313(3), quoted in question 1 above, a public employee is prohibited from selling goods or services to his own agency. Other state agencies are by definition distinct from your agency and you therefore are not prohibited by s. 112.313(3) from selling to them.
A public employee is prohibited from holding employment or a contractual relationship with any business entity which is subject to the regulation of his agency pursuant to s. 112.313(7), quoted in question 1 above. Since your agency, the Bureau of Finance and Management Services, does not regulate other state agencies, you are not prohibited by s. 112.313(7) from selling to other state agencies.
Consequently, the Code of Ethics does not prohibit you from selling roof maintenance supplies to state agencies outside of DOE.
Question 4 is answered in the negative, also.
Pursuant to s. 112.313(7), quoted in question 1 above, a public employee is prohibited from holding employment or a contractual relationship with any business entity which is subject to the regulation of his agency.
You have advised us that your agency, the Bureau of Finance and Management Services, has no regulatory power over private schools in Florida. Consequently, you are not prohibited from selling maintenance products to private schools while concurrently being employed by the Department of Education.
Question 5 is answered in the affirmative.
You have advised us that your job requires that you review the district school reports, which consist of the budgets and annual reports of the individual district school boards. You also assist the districts in resolving any problems that you discover upon reviewing these materials. We understand that these reports, which are public records, contain information relating to future repairs which would involve the use of maintenance products such as those you contemplate selling.
Your memo of February 20, 1976, advises us that you have neither the power nor authority to stop or delay state allocations to the districts and that it is impossible for you to use your official position in relation to the districts for your own personal gain. However, the Chief of the Bureau of Finance and Management Services advises us that the bureau does regulate the district school boards in the sense that the bureau may, in its discretion, recommend the impoundment of monthly allocations to districts in order to require compliance with state regulations.
Pursuant to s. 112.313(7), quoted in question 1 above, a public employee is prohibited from having a contractual relationship or employment with an agency which is subject to the regulation of his public agency. In our view, regulation in this context necessarily involves an agency's power to require another agency to abide by decisions of the former. The Bureau of Finance and Management Services can require compliance with state regulations with the real threat of the impoundment of allocations. This being the situation, you are prohibited from selling to the district school boards while concurrently holding employment with the Bureau of Finance and Management Services of DOE.