CEO 78-94 -- December 21, 1978

CONFLICT OF INTEREST

SCHOOL BOARD MEMBER ON LEAVE OF ABSENCE FROM POSITION AS PRINCIPAL IN SCHOOL DISTRICT

To: Gerald E. Adair, Monroe County School Board, Tavernier

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(10)(a), F. S. 1977, prohibits a public employee from holding office as a member of the governing board which is his employer while continuing as an employee of such employer. When a school board member is on leave of absence from his position as a school principal within the district, he is deemed to be "continuing as an employee" of the school board within the meaning of this provision and therefore is in violation of the Code of Ethics. A leave of absence constitutes a continuing link with the former position and, within the context of conflict of interest laws and circumstances in the instant case, provides the opportunity to act on considerations of returning to one's position. It is further noted that paragraph (b) of s. 112.313(10) requires an incumbent to "surrender his conflicting employment prior to seeking reelection or accepting reappointment to office," implying a legislative intent that the position be given up completely. Reference also is made to United Faculty of Miami-Dade Community College, F.E.A./United A.F.T., A.F.L.-C.I.O. and Miami-Dade Community College, 4 F.P.E.R. 4173 (1978), in which the Florida Public Employees Relations Commission held that a public employee on leave of absence remains a "public employee" for purposes of voting in collective bargaining matters because he has not relinquished his employment and because he retains the expectancy of continued employment.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit a school board member from holding a leave of absence from his position as a principal in the school system while serving on the board?

Your question is answered in the affirmative.

In your letter of inquiry and in a telephone conversation with our staff you have advised that from 1965 until June of 1978 you were a principal in the Monroe County school system. In June, you were granted a year's sick leave of absence, and, while on leave, you sought and won election to the Monroe County School Board. Having been informed that the Code of Ethics would require you to terminate your position as principal, even though you were granted a leave of absence, you have resigned from your employment as principal. However, you stated that you would seek a personal leave of absence from your prior position as principal, in order to guarantee that position at the end of your term on the school board, if you are advised that this would be acceptable under the Code of Ethics. This personal leave of absence would be without pay and without any of the benefits which would accrue to a person who is actively employed as a principal.

The Code of Ethics for Public Officers and Employees provides in relevant part:

EMPLOYEES HOLDING OFFICE. --

(a) No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his employer while, at the same time, continuing as an employee of such employer.

(b) The provisions of this subsection shall not apply to any person holding office in violation of such provisions on the effective date of this act. However, such a person shall surrender his conflicting employment prior to seeking reelection or accepting reappointment to office. [Section 112.313(10), F. S. 1977.]

We first note that paragraph (b) does not apply here as you were not a member of the school board on the effective date of the provision (October 1, 1975).

For purposes of the Code of Ethics, a school district constitutes a political subdivision. Sections 1.01(9) and 230.01, F. S. 1977. In addition, a principal is an employee of the school board. Section 231.085, F. S. 1977. Therefore, s. 112.313(10) clearly would prohibit you from actively being employed as a principal while holding a position on the school board.

The question posed, however, is whether this provision of the Code of Ethics prohibits a school principal from retaining a personal leave status while sitting on the school board. The answer to this question turns on whether a leave of absence constitutes "continuing as an employee" of the school board under s. 112.313(10). In light of the purposes of this provision of the Code of Ethics, it is our opinion that it does.

The purpose of each standard of conduct contained in the Code of Ethics is to prohibit conflicts of interest:

It is hereby declared to be the policy of the state that no officer or employee of a state agency or of a county, city, or other political subdivision of the state, and no member of the Legislature or legislative employee, shall have any interest, financial or otherwise, direct or indirect; engage in any business transaction or professional activity; or incur any obligation of any nature which is in substantial conflict with the proper discharge of his duties in the public interest. [Section 112.311(5), F. S. 1977.]

In our view, by having retained leave status, a principal has an interest which is in substantial conflict with the independent and impartial discharge of his duties as a school board member. A leave of absence constitutes a continuing link with one's former position. Concern for returning to that former position is indicated by the fact that the leave of absence is requested; i.e., if one did not anticipate returning to the position, there would be no need to seek the leave of absence. While this concern for one's former position generally would not result in a conflict of interest, a school board member is well-situated to act on his considerations of returning as a school principal. It cannot be controverted that the school board has extensive authority over the affairs of the school district, including the authority to suspend or dismiss employees; to enter into contracts with personnel; to regulate the makeup of school administration and the powers and duties, salaries, and benefits of administrators; to implement special programs at certain schools; and to make allocations to the various schools. See, generally, Chs. 230 and 231, F. S. 1977.

We are aware that a person on leave of absence does not remain an "employee" in certain areas of the law. For example, one who is on leave of absence is "unemployed" as that term is defined for purposes of unemployment compensation. See General Telephone Company of Florida v. Board of Review, 356 So.2d 1357 (2 D.C.A. Fla., 1978), holding that for the purposes of Florida's Unemployment Compensation Law, a leave of absence is equal to unemployment because a person is unemployed when he performs no services and receives no wages. However, this definition of "unemployed" should be understood in terms of the purposes of unemployment compensation -- to mitigate the effects of economic insecurity due to unemployment -- and therefore does not necessarily have any bearing on how the term "employed" should be interpreted to prohibit conflicts of interest. See s. 443.02, F. S. 1977. Similarly, definitions of the employment relationship which require as an element the control and direction by the employer over the conduct of the employee have arisen from the legal concern for distinguishing between employees and independent contractors for purposes of determining the liability of an employer for the acts of his employees and for purposes of defining the responsibilities of the employer to the employee. In the context of conflict of interest, when a principal has taken a leave of absence without pay or other benefits to serve on the school board which hired him, he is not regulating or benefiting himself directly, but he is certainly in a position to regulate the conditions of his future employment and his future benefits.

In addition, we note that paragraph (b) of s. 112.313(10) requires an incumbent to "surrender his conflicting employment prior to seeking reelection or accepting reappointment to office." The use of the term "surrender" implies a legislative intent that the position be given up completely. When a leave of absence is retained, the employment has not been totally surrendered.

Finally, we note that the Florida Public Employees Relations Commission has followed a long line of National Labor Relations Board cases in holding that a public employee on leave of absence remains a "public employee" for purposes of voting in collective bargaining matters because he has not relinquished his employment and because he retains the expectancy of continued employment. United Faculty of Miami-Dade Community College, F.E.A./United A.F.T., A.F.L.-C.I.O. and Miami-Dade Community College, 4 F.P.E.R. 4173 (1978). If the expectation of a teacher on leave of absence of resuming his position is sufficiently significant to allow him to remain a public employee for purposes of collective bargaining, then that expectation is certainly of sufficient significance to constitute a conflict of interest.

Accordingly, we find that the Code of Ethics prohibits a school board member from retaining a leave of absence from his position as a principal in the school system while servingon the school board.