CEO 78-22 -- April 20, 1978

CONFLICT OF INTEREST

SCHOOL TEACHER OWNING COMPANY SELLING TO SCHOOL BOARD WHICH EMPLOYS HIM

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(3), F. S. 1977, 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. Accordingly, 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, s. 112.316, F. S., 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. In previous opinions relating to teachers selling to a school board or to individual schools, the Ethics Commission has interpreted s. 112.313(3) in conjunction with s. 112.316 to permit a teacher to sell to schools other than his own and to the school board which employs him so long as the materials sold do not relate directly to his public position so as to place him in the position of potentially being able to influence school purchases. Under this precedent, no conflict of interest is deemed to be created where a fifth grade teacher owns a company which sells general educational materials to the school board or to schools within the district other than the one at which he teaches as he is not deemed to be in a position to offer advice or recommendations regarding the purchase of such materials except within his own school.

QUESTION:

Would a prohibited conflict of interest be created were a company owned by me, a public school teacher, to sell school supplies to the district school board which employs me, to schools within the district other than the one at which I teach, or to individual teachers within the school district?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advise that you are employed by the ____ County School Board in a nonsupervisory position as a fifth grade teacher. You also advise that you own a company which manufactures teaching aids such as bulletin board letters, multiplication kits, and motivational materials for sale to school supply companies and schools throughout the country and which sells a variety of supplies to schools in your own district as well as in other districts. In addition, the company sells materials to teachers, parents, and private organizations who pay for the materials with nonpublic funds.

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. 1977.]

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. Commission on Ethics Opinions 75-196, 76-5, 76-12 and 76-23. As a school district constitutes a political subdivision pursuant to s. 230.01, F. S. 1977, and as the definition of "agency" contained in s. 112.312(2), F. S. 1977, 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. 1977.]

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.

In previous opinions relating to teachers selling to a school board or to individual schools, we have interpreted s. 112.313(3) in conjunction with s. 112.316 to permit a teacher to sell to schools other than his own and to the school board which employs him so long as the materials sold do not relate directly to his public position. Thus, 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. Conversely, in CEO 77-109, we found that a physical education teacher could sell a basic math skill program to the school district which employed him or to schools within the district other than the one at which he taught because, as a physical education instructor, he would not be in a position to influence the acquisition of mathematics materials.

We are of the opinion that you are not in a position to offer advice or recommendations regarding the purchase of general educational materials manufactured or sold by your company either to the district school board which employs you or to schools within the district other than the one at which you teach. Nor do we feel that sales by your company to individual teachers who purchase educational materials with their own money would create a frequently recurring conflict of interest under s. 112.313(7)(a), F. S. 1977, because you are not in a supervisory position over any teachers.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit a company owned by you from selling school supplies to the district school board which employs you, to schools within that district other than the one at which you teach, or to individual teachers within the school district who purchase the supplies with their own, private funds.