CEO 76-172 -- September 13, 1976

CONFLICT OF INTEREST

SCHOOL TEACHER PART OWNER OF BUSINESS SELLING TO SCHOOLS

To: Roger Weaver, Citrus County School Superintendent, Inverness

Prepared by: Bonnie Johnson

SUMMARY:

A music instructor and band director of a public high school who owns a material interest in a music store is prohibited from selling musical instruments or supplies to the school in which he teaches or to the school system pursuant to the mandate of Florida Statute s. 112.313(3)(1975), providing that an employee of a political subdivision may not privately sell to his own agency or to any agency within his political subdivision. Inasmuch as he has no input into purchasing decisions of other schools within the district, however, no conflict of interest is deemed to be created where sales are made to those schools as such sales would in no way interfere with the full and faithful discharge of his public duty. See Fla. Stat. s. 112.316(1975).

QUESTIONS:

1. Would a prohibited conflict of interest be created were a music store in which a school teacher owns a material interest to sell goods to the school board and to the school in which he teaches?

2. Would a prohibited conflict of interest be created were the music store in which a school teacher owns a material interest to sell goods to other schools in the district?

Question 1 is answered in the affirmative.

You have informed our staff that Mr. Lionel King, Band Director and music instructor at Citrus High School, owns a material interest in a local music store which wishes to sell musical instruments and supplies to the school system.

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 . . . . [Fla. Stat. s. 112.313(3)(1975); emphasis supplied.]

An employee of a political subdivision accordingly is prohibited from acting in a private capacity to sell to his own agency or to any agency within his political subdivision. In our view one who owns a material interest in a business acts in his private capacity to sell when that business sells. See CEO 75-196. As the district school board constitutes a political subdivision pursuant to Florida Statute s. 230.01(1975), the employee is prohibited by the above-quoted provision both from selling to the school board and from selling to his own agency, the high school by which he is employed.

Question 2 is answered in the negative.

While a strict reading of s. 112.313(3), quoted above, prohibits an employee of a political subdivision from selling goods to any agency of that subdivision, we must read this prohibition 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. [Fla. Stat. s. 112.316(1975).]

The above-quoted 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. As a music teacher and band director, the subject employee is in a position to offer advice and recommendations both to his own school and to the school board relative to the purchase of musical supplies. To engage in private business transactions with the school board or his own school therefore would create a conflict, as determined in question 1 above.

We reach a different conclusion, however, where the music store sells directly to schools other than the one by whom the subject teacher is employed. As a school teacher, he is not in a position either to supervise or regulate schools other than his own. Nor do his public duties involve approval of or the giving of advice or recommendations as to the purchase of goods by those individual schools. This being the case, we find no conflict of interest to be created where a music store in which a school teacher owns a material interest sells goods directly to schools in the district other than said teacher's own.