CEO 76-115 -- June 17, 1976

CONFLICT OF INTEREST

SCHOOL BOARD MEMBERS PRIVATELY DIRECTORS OF BANKS LENDING MONEY TO BOARD

To: James F. McCollum, Attorney for Highlands County School Board, Sebring

Prepared by: Gene Rhodes

SUMMARY:

A public officer is prohibited from acting in his official capacity to purchase any services for his own agency from any business entity in which he serves as a director and from acting privately to sell such services to his public agency. Fla. Stat. s. 112.313(3)(1975). In our view, membership on a school board constitutes acting in one's official capacity where the board takes action. Similarly, serving as a director of a business entity constitutes acting in a private capacity to sell where the business sells. Accordingly, a prohibited conflict of interest is created where two school board members serve on the boards of directors of banks lending money to the school board.

QUESTION:

Would a prohibited conflict of interest be created were two county school board members to hold those public positions while each is concurrently a member of the board of directors of a bank lending money to the board?

This question is answered in the affirmative.

Your letter of inquiry advises us that each of the two subject school board members is a member of a board of directors of a bank in your county.

The Code of Ethics for Public Officers and Employees states 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. . . . [Fla. Stat. s. 112.313(3)(1975).]

The first sentence of the above-quoted provision prohibits a public officer from acting in his official capacity to purchase services for his own public agency from a business entity of which he is a director. In our view membership on a school board constitutes acting in one's official capacity when the board takes action. Accordingly, this provision prohibits the subject board members from holding those public positions while simultaneously being members of the board of directors of banks lending money to the board.

The second sentence of the above-quoted provision prohibits a public officer from acting in a private capacity to sell services to his public agency. We have previously determined that being a director of a corporation is tantamount to acting in a private capacity to sell where that corporation sells. See CEO 75-12. Similarly, this sentence prohibits the situation you describe.

Consequently, the subject school board members are prohibited from holding those public positions while concurrently being members of the boards of directors of banks which are lending money to the board.