CEO 80-86 -- December 4, 1980

CONFLICT OF INTEREST

JUNIOR COLLEGE FACULTY MEMBERS PROVIDING CONSULTANT SERVICES FOR SEMINAR SPONSORED BY COLLEGE

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(3), F. S., prohibits a public employee from acting in a private capacity to sell services to his "agency," a term which is defined to include a community college. Section 112.312(2), F. S. This provision was violated when two faculty members of a junior college provided consultant services for a seminar sponsored by the college. Although the faculty members may have been the "only source of supply within the political subdivision," as contemplated in the exemption contained in s. 112.313(12)(e), the express terms of that exemption were not met because there was no disclosure of the transaction to the college's board of trustees, the governing body of the political subdivision in question.

QUESTION:

Was a prohibited conflict of interest created when two faculty members of a junior college provided consultant services for a seminar sponsored by the college and paid for by a federal grant?

Your question is answered in the affirmative.

In your letter of inquiry and in a telephone conversation with our staff you advise that ____ and ____ are members of the faculty of St. Petersburg Junior College. You also advise that in 1977 the two faculty members offered consultative services to the police administration department of the college to present a management seminar, sponsored by the college, to police chiefs of the state. The faculty members state that they contacted the college president at that time and that he had no objection to the plan, although he does not recall the incident now.

The seminar was presented with the use of extensive materials at a cost of approximately one-half of the usual amount for such services, you advise. The faculty members were paid for their work by the college, the costs of the seminar being reimbursed from a federal grant covering all expenses of participants, materials, and consultant fees. The program was repeated the following year. Finally, you advise that the services provided by the faculty members were viewed by the college as consultations rather than extra pay work within normal salary schedules.

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.

(c) Appointment to public office.

(d) Beginning public employment.

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

This provision prohibits a public employee from acting in a private capacity to sell services to his "agency," a term which is defined to include a community college. Section 112.312(2), F. S. In our view, even though the expenses of the seminars were reimbursed by a grant, the subject faculty members acted in their private capacities to sell their services to the college.

You have inquired whether the services provided by the faculty members came within the terms of s. 112.313(12)(e), F. S., which provides an exemption to s. 112.313(3), above, if

[t]he business entity involved is the only source of supply within the political subdivision of the officer or employee, and there is full disclosure of the officer's or employee's interest in the business entity to the governing body of the political subdivision.

In this state, junior colleges have been designated as political subdivisions, the governing bodies of which are boards of trustees. Sections 240.317 and 240.319, F. S. Further, in a memorandum prepared by the subject faculty members, we are advised that the materials used in the workshop are copyrighted by a company and are not available for a workshop to anyone except persons who have been trained by the company. In addition, they state that at the time the workshops were presented there were no other official trainers in the junior college district. They also advise that the district board of trustees had precluded the need to take the services agreement to the board by a rule which delegated limited purchasing authority to the president of the college.

Although the faculty members apparently were the only source of supply within the college district for this particular type of workshop, they have not complied with the express terms of the exemption, as no disclosure was made to the board of trustees. Despite the fact that the board has delegated its purchasing authority to the president in some instances by an administrative rule, the rule does not and cannot have the effect of suspending compliance with a statute which specifically requires disclosure to the board. While we do not mean to imply that the transactions were made with any attempt to conceal the facts, or otherwise were not made in good faith, it is clear that the express terms of the exemption were not met.

Accordingly, we find that a prohibited conflict of interest was created when two faculty members of the college provided consultant services for a seminar sponsored by the college and paid for by a federal grant. In the event that similar circumstances arise in the future, such transactions may be exempted by compliance with s. 112.313(12)(b), F. S., regarding competitive bidding, or with s. 112.313(12)(e).