CEO 81-22 -- April 2, 1981

CONFLICT OF INTEREST

EXECUTIVE DIRECTOR OF STATE BOARD OF INDEPENDENT COLLEGES AND UNIVERSITIES SERVING ON BOARD OF TRUSTEES OF NONPUBLIC COLLEGE

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

SUMMARY:

No prohibited conflict of interest would be created under the Code of Ethics for Public Officers and Employees were the Executive Director of the State Board of Independent Colleges and Universities to serve as a member of the board of trustees of a nonpublic college which is excluded from the licensing requirements of the state board by virtue of its nationally recognized accreditation under Section 246.012(1)(b), F. S. In addition, the college has not sought voluntary licensure by the state board, as permitted under Section 246.041(2)(e), F.S.

QUESTION:

Would a prohibited conflict of interest be created were you, the Executive Director of the State Board of Independent Colleges and Universities, to serve as a member of the Board of Trustees of a nonpublic college which is excluded from the licensing requirements of the State Board?

Your question is answered in the negative.

In your letter of inquiry you advise that you are the Executive Director of the State Board of Independent Colleges and Universities, the agency within the Department of Education which is responsible for licensing and regulating nonpublic colleges under the provisions of Chapter 246, F. S. You also advise that you are interested in serving as a member of the Board of Trustees of a nonpublic college which is fully accredited by the Association of Independent Colleges and Schools. This accrediting agency, you advise, is recognized by the U.S. Department of Education. Because the college is accredited by an agency recognized by the U.S. Department of Education, the college is excluded from the licensing requirements and regulatory jurisdiction of the State Board under Section 246.012(1)(b), F. S.

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

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), F.S.]

This provision prohibits a public employee from being employed by or having a contractual relationship with a business entity which is subject to the regulation of, or is doing business with, his agency. However, we find that the subject college is not doing business with or subject to the regulation of the State Board of Independent Colleges and Universities. The college is excluded from the licensing and regulation requirements of the State Board by statutory provision. In a telephone conversation with our staff, you advised that the College has not sought voluntary licensure by the State Board, although it may do so under the provisions of Section 246.041(2)(e), F. S., and Rule 6E-1.04, F.A.C., of the State Board. However, the college does file a general information form with the State Board, you advised our staff. This form was adopted by the State Board pursuant to its responsibility of serving as a repository for current information and as a clearing house for inquiries relating to institutions under the State Board's purview, you advised, and is sent to all nonpublic institutions within the State to assist the State Board in planning. Section 246.041(1)(k). In addition, you advised that the State Board has no authority to require excluded institutions to provide this general information. For these reasons, we do not view the college as being subject to the regulation of the State Board, as the State Board has no authority to prescribe the manner in which the college performs its functions.

The second portion of Section 112.313(7)(a), above, prohibits a public employee from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. Under the circumstances you have presented, we see no reason to believe that a conflict of interest with your duties as Executive Director to the State Board would arise by virtue of your service on the Board of Trustees of the College.

Accordingly, we find that no prohibited conflict of interest would be created were you to serve as a member of the Board of Trustees of a nonpublic college which is excluded from the licensing requirements of the State Board of Independent Colleges and Universities.