CEO 76-171 -- September 13, 1976

CONFLICT OF INTEREST

DEPARTMENT OF EDUCATION OFFICIAL AUTHOR OF TEXTBOOK WHICH MAY BE BOUGHT BY SCHOOL DISTRICTS

To: (Name withheld at the person's request.)

Prepared by: Roger Merriam

SUMMARY:

A state employee is prohibited by Florida Statute s. 112.313(3)(1975) from acting in his official capacity as a purchasing agent to buy goods from a business entity in which he holds certain interests, and from acting in his private capacity to sell goods to his own agency. Where an employee of the Department of Education coauthored a textbook potentially to be purchased by public schools in the state, however, no conflict is created as he has no purchasing responsibility in his public position and because the book would be sold to public schools rather than to his agency, the department. A public officer is further precluded from holding a contractual relationship with a business entity which does business with his public agency. Fla. Stat. s. 112.313(7)(1975). Although the Department of Education does business with the book publisher in the sense that it receives sealed bids for textbook sales as well as bid deposits, actual sales are made to individual public schools rather than to the department. Too, the employee's responsibilities are in no way related to textbook acquisition. Pursuant to the mandate of s. 112.316, therefore, no conflict of interest is deemed to exist where textbooks coauthored by said employee are purchased by public schools within the state.

QUESTION:

Would a prohibited conflict of interest exist were I, as Deputy Commissioner for Administration in the Florida Department of Education, to have published a textbook which I coauthored, which may be purchased for classroom use by school districts in the state?

Your question is answered in the negative.

You advise in your letter of inquiry that, prior to your accepting employment with the Department of Education, you coauthored, with a colleague, a manuscript of a reading textbook for which you have sought a publisher for approximately 2 years. You now have secured a publisher, who has requested that you seek assurance that sales of the textbook to Florida public schools will not create a conflict of interest on your part.

You further advise that the State Board of Education appoints members to state instructional materials councils which recommend to the state board textbooks and other materials for use in the public school system. Final approval of materials lies with the State Board of Education. You advise, however, that your particular position with the Department of Education is not related to the selection or adoption of textbooks. Furthermore, state money is appropriated to local school districts, which purchase materials directly from publishers.

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

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Fla. Stat. s. 112.313(3)(1975).]

A public employee accordingly is prohibited from acting in his official capacity as a purchasing agent to buy goods from a business entity in which he holds certain interests. This prohibition is inapplicable to the situation you describe, for you do not act as a purchasing agent in textbook acquisitions. The above-quoted provision further prohibits a public employee from acting privately to sell goods to his own agency. In the instant case, however, it is the publisher who will sell the book, not to the Department of Education, but to local school districts.

The Code of Ethics further provides as follows:

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 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. [Fla. Stat. s. 112.313(7)(a)(1975).]

A public employee thus is prohibited from having a contractual relationship with a business entity which does business with his public agency.

Under the situation you describe, you will have a contractual relationship with a business entity, the publisher, which potentially will be doing business with your agency, the Department of Education, at some future date. Publishers who seek to sell textbooks to public schools in Florida are required by Florida Statute s. 233.14 to submit sealed bids to the Department of Education, and by s. 233.15 to submit to the department bid deposits ranging from $500 to $2500. The department has authority to select from these bids instructional materials which are approved for use by public schools in the state; contracts with the publishers or suppliers, however, are executed by the Governor and the Secretary of State. Although publishers do not sell to the department, we believe they are "doing business" within the contemplation of s. 112.313(7), quoted above. You therefore would have a contractual relationship with a business entity doing business with your agency, in apparent violation of Florida Statute s. 112.313(7)(1975).

However, Florida Statute s. 112.316 provides as follows:

Construction. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved.

Accordingly, it was not the intent of the Legislature, in enacting the Code of Ethics, to prohibit private pursuits which do not interfere with one's public duty. Each standard of conduct must be read with this qualification in mind.

An examination of your official responsibilities leads us to conclude that your contractual relationship with your publisher will not interfere with the discharge of your public duties because these duties are strictly limited to administrative affairs of the Department of Education and in no way involve the selection of textbooks for use by public schools in the state. Moreover, business transactions between publishers and the department are minimal, the actual purchase of books taking place at the district level.

Therefore, we find that the Code of Ethics for Public Officers and Employees does not prohibit you from contracting with a publisher for publication of a textbook which may be purchased for classroom use in public schools in the state.