CEO 77-63 -- April 21, 1977

CONFLICT OF INTEREST

TEACHER CONTRACTING WITH SCHOOL BOARD TO PERFORM WORK FOR ANOTHER SCHOOL

To: John W. Burton, Attorney, Hardee County School Board, Wauchula

Prepared by: Phil Claypool

SUMMARY:

A public employee is prohibited by s. 112.313(3), F. S. 1975, from acting in a private capacity to sell any goods or services to his own political subdivision or to any agency thereof. A public school teacher therefore would appear to be prohibited from accepting, on a bid basis, a contract to install a sprinkler system for an elementary school within his school district. However, s. 112.316 of the Code of Ethics states that it is not the intent of the standards of conduct provisions of the law to prohibit private pursuits which do not interfere with the full and faithful discharge of public duty. Thus, in a previous opinion (CEO 76-157) no conflict was found where a municipal parks and recreation department employee had contracted with the city council to provide trash and garbage pickup for city parks, because the employee was not in a position to supervise or regulate the city council and because his duties did not involve approval or recommendations as to contracts relating to sanitation services. However, in CEO 76-193, s. 112.316 was deemed inapplicable where an offset-press operator with a city printing department wished to bid privately on contracts to do printing with the city, because the employee was in a position to indirectly influence the determination of which jobs would be printed. See also CEO's 75-196 and 76-172. In the instant case the instructor teaches physical education in an elementary school and is not in a position to offer advice or recommendations to the school board relative to the installation of a sprinkler system for a different school, as he has no expertise in landscaping. Accordingly, no conflict is deemed to exist under these circumstances.

To the extent that this interpretation contradicts that of CEO 76-174, that opinion is superseded.

QUESTION:

Would a prohibited conflict of interest be created were a school board to award a contract to install a sprinkler system for an elementary school to a person who teaches physical education at a different elementary school within the same district?

Your question is answered in the negative.

In your letter of inquiry you have stated that you represent the Hardee County School Board. You have also stated that the school board advertised for bids for a sprinkler system for one of its elementary schools but that only one bid was submitted in response. That bid was from a business owned by Mr. George Lackey, who teaches physical education at another elementary school within the school district. In addition, that teacher has no connection with the school for which the work is to be performed, and he holds no position with the school board which would entitle him to make decisions involving the use of such services.

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. . . . [Section 112.313(3), F. S. 1975.]

This provision prohibits a public employee acting in a private capacity from selling any goods or services to a political subdivision or any agency thereof if he is an employee of that political subdivision. In our view, a public employee who owns a business acts in a private capacity to sell when that business sells. As a school district constitutes a political subdivision pursuant to s. 230.01, F. S. 1975, and as the definition of "agency" contained in s. 112.312(2), F. S. 1975, includes "any public school," a business owned by a school teacher seemingly is prohibited from selling goods or services to the school board which employs him or to any school within that district.

However, we must read the prohibition contained in s. 112.313(3), above, in light of another provision of the Code of Ethics, which states:

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. [Section 112.316, F. S. 1975.]

This provision mandates that the Code of Ethics not be construed to prohibit a public officer or employee from engaging in private pursuits which do not interfere with the full and faithful discharge of his public duties.

Thus in a previous opinion, CEO 76-157, we applied the above- quoted provision to find no conflict of interest where a municipal parks and recreation department employee had contracted with the city council to provide trash and garbage pickup for city parks, because the employee was not in a position to supervise or regulate the city council and because the employee's duties did not involve approval or recommendations as to contracts relating to sanitation service. However, in CEO 76-193, the above-quoted provision was not found applicable where an offset-press operator with a city printing department wished to bid privately on contracts to do printing with the city because the employee was in a position to indirectly influence the determination of which jobs would be printed by the city and which would be done by private businesses. Similarly, in CEO 75-196 we found that a prohibited conflict of interest would be created were a trophy business owned by a school board member to sell to any of the schools in his school district. On the other hand, in CEO 76-172 we found that a music store owned by a music teacher could not sell music supplies to the school board which employed him or to the school at which he taught because he was in a position to offer advice and recommendations on the purchase of music supplies to the school board and to his own school, although we found that the store could sell directly to schools other than the one at which he taught.

Here, the subject instructor teaches physical education in an elementary school and is not in a position to offer advice and recommendations to the school board relative to the installation of a sprinkler system for a different elementary school. Were he the owner of a sporting goods store which wished to contract with the school board to sell sports equipment to schools in the district, he would be in a different position; but here the teacher's responsibilities do not relate to the installation of sprinkler systems.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit a school board from awarding a contract to install a sprinkler system for an elementary school to a person who teaches physical education at a different elementary school within the same district.

To the extent that the interpretation herein contradicts that of our earlier opinion in CEO 76-174, that opinion is hereby deemed to be superseded.