CEO 77-109 -- July 21, 1977

CONFLICT OF INTEREST

ELEMENTARY SCHOOL TEACHER SELLING TO SCHOOL SYSTEM PROGRAM WHICH HE HAS DEVELOPED AND COPYRIGHTED

To: Marvin L. Styles, Assistant Superintendent of Administration, Lake County School System, Tavares

Prepared by: Phil Claypool

SUMMARY:

A public employee is prohibited from acting in a private capacity to sell any goods or services to his own agency or to any agency within that political subdivision. Section 112.313(3), F. S. 1975. As a school district constitutes a political subdivision pursuant to s. 230.01, F. S., and as the definition of "agency" contained in s. 112.312(2) includes "any public school," 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 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 the instant case the subject instructor teaches physical education in an elementary school and is not in a position to offer advice and recommendations to the school board relative to the purchase of a basic math skill program which he has developed. Nor is he in a position to offer such advice to schools in the district other than the one at which he teaches. Accordingly, no conflict of interest is deemed to be created where a physical education teacher in an elementary school sells to the school district or to schools within the district, other than the one at which he teaches, a mathematics program which he has developed and copyrighted.

QUESTION:

Would a prohibited conflict of interest exist were a physical education teacher in an elementary school to sell to the school district which employs him or to individual schools within that district a mathematics program which he has developed and copyrighted?

In your letter of inquiry and in a telephone conversation with our staff you have advised that Mr. Sam Houck is a physical education teacher in an elementary school within the Lake County School District. In addition, you have stated that Mr. Houck has developed and copyrighted a basic math skill program which was used in a school in a different school district this year and which he wishes to sell to the school district which employs him or to individual schools within the district.

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. . . . [Section 112.313(3), F. S. 1975.]

This provision prohibits a public employee, acting in a private capacity, from selling any goods or services to any political subdivision or any agency thereof, if he is serving as an employee of that political subdivision. As a school district constitutes a political subdivision pursuant to s. 230.01, F. S. 1975, and as the definition of "agency" contained in s. 112.312(2), F. S. 1975, 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. 1975.]

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.

Here, the subject instructor teaches physical education in an elementary school and is not in a position to offer advice and recommendations to the school board relative to the purchase of a basic math skill program. Nor is he in a position to offer such advice and recommendations to schools in the district other than the one at which he teaches.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit a physical education teacher in an elementary school from selling to the school district which employs him or to schools within the district, other than the one at which he teaches, a mathematics program which he has developed and copyrighted.