CEO 82-29 -- May 20, 1982

FINANCIAL DISCLOSURE; CONFLICT OF INTEREST

SCHOOL BOARD ATTORNEY ALSO EMPLOYED BY SCHOOL BOARD AS LABOR RELATIONS SPECIALIST

To: Mr. Gavin W. O'Brien, Manatee County School Board Attorney

SUMMARY:

A school board attorney who also is employed by the school board part-time as Labor Relations Specialist is not required to file a Statement of Financial Interests pursuant to Section 112.3145, Florida Statutes, unless he has the authority to make purchases in excess of $100 for the school district. CEO 77-12 is referenced.

A prohibited conflict of interest exists where a part- time employee of a school board, a Labor Relations Specialist, subsequently is retained by the school board as school board attorney on the basis of a retainer contract at an agreed hourly rate. Section 112.313(3), Florida Statutes, prohibits a public employee from acting in a private capacity to sell any services to his own agency. The employee's agency is the school district under Section 112.312(2), Florida Statutes. Therefore, he is prohibited from contracting to sell his professional services to the school district.

QUESTION 1:

Are you, a School Board Attorney and an employee of the School Board as a Labor Relations Specialist, a local officer or specified employee subject to the requirement of filing a Statement of Financial Interests annually?

Section 112.3145(2)(d), Florida Statutes (1981), requires that each "local officer" and each "specified employee" annually file a Statement of Financial Interests. In a previous opinion, CEO 77-12, we advised that the term "specified employee" is defined to include various positions only at the State level of government and not to include employees of school districts. In that opinion we also advised that a school board attorney does not fall within the definition of "local officer" and that the only employees of a school district who fall within the definition of that term are district school superintendents and employees having the authority to make a purchase of $100 for the district or any school or department thereof.

Accordingly, so long as you do not have the authority to make purchases in excess of $100 for the District in your capacity as Labor Relations Specialist, we find that you are not subject to the requirement of filing a Statement of Financial Interests annually pursuant to Section 112.3145, Florida Statutes.

QUESTION 2:

Does a prohibited conflict of interest exist where you have been retained as School Board Attorney while also being employed part-time by the School Board as a Labor Relations Specialist?

This question is answered in the affirmative.

In your letter of inquiry you advise that you have been employed as a Labor Relations Specialist by the School Board of Manatee County as a part-time employee working twenty hours per week at an annual salary. In that position as an employee, you perform nonlegal duties with an office in the School Administration building and receive such employee benefits as retirement on a pro rata basis.

You also advise that recently you were retained by the School Board as School Board Attorney on the basis of a retainer contract at an agreed hourly rate, without the receipt of any fringe benefits. Finally, you advise that you maintain an independent law practice, actively representing other clients from your office, which is not located on school property.

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.

(d) Beginning public employment.

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

This provision prohibits an employee of a political subdivision from acting in a private capacity to sell any services to that political subdivision or any agency of that political subdivision.

As Labor Relations Specialist, you are a public employee whose agency is the School District. See Section 112.312(2), Florida Statutes, which defines the term "agency" to mean "any . . . political subdivision of this state . . ." or "any public school . . . ." This legislatively-created definition within the Code of Ethics is binding on interpretations of the Code of Ethics. Therefore, Section 112.313(3) prohibits you from acting in a private capacity to sell any services to the School District or to any of the schools within the District. See CEO's 77-42, 77-109, 77-125, 78-22, 79-83, and 80-35.

As an attorney, you are acting in a private capacity to sell your services to the School District under your retainer contract to serve as School Board Attorney. See CEO 81-49 and CEO 81-50, in which we found that School Board employees were acting in a private capacity to sell services to their School Districts when their law firms were providing legal services to the School Boards.

The Legislature expressly has provided several exemptions to Section 112.313(3) both through the "grandfather" provisions within Section 112.313(3) and through the provisions of Section 112.313(12), Florida Statutes. See, for example, CEO 77-125 (sole source exemption) and CEO 80-35 (sealed, competitive bid exemption). As your contract to act as School Board Attorney was not entered into prior to your beginning public employment as Labor Relations Specialist, the "grandfather" provisions in Section 112.313(3)(a) through (3)(d) do not apply. Nor does it appear that any of the exemptions contained in Section 112.313(12) would apply to your situation. In particular, we note that although you were selected as the Board's attorney through a procedure using a request for proposal and interviews based on proposals submitted by eight firms, this was not a system of sealed, competitive bidding as is required by Section 112.313(12)(b), Florida Statutes. See CEO 81-28 and CEO 81-2.

In addition, under certain circumstances we have interpreted Section 112.316, Florida Statutes, as impliedly creating an exception to Section 112.313(3). In CEO 78-22 we advised that we have interpreted Section 112.313(3) in conjunction with Section 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.

However, we have distinguished between a school teacher, whose "agency" clearly is the school at which he teaches, and an employee who is part of the school district administration. In CEO 77-42, we advised that an assistant superintendent for adult and community education could not sell building supplies to the school district or to individual schools within the district. In CEO 77-125, we found that Section 112.313(3) would prohibit a school district director of curriculum from selling athletic supplies to the school board or to any schools within the district. In CEO 79-82, the same rule was followed with respect to a school principal, as he was part of the school district administration; CEO 80-35 applied the same rule to an area assistant superintendent. See also CEO 81-49 and CEO 81-50, involving school board attorneys.

We are of the opinion that your position as Labor Relations Specialist is not a teaching position, but rather is part of the Administration of the School District. For this reason, we find that Section 112.316 does not exempt the sale of your legal services to the School Board from the application of Section 112.313(3). Although you advise that you were not involved as Labor Relations Specialist in your selection as School Board Attorney and did not attempt to exert any influence to obtain the additional position, we do not find that you have demonstrated that you were not in a position from which you could have attempted to influence the Board's decision. Similarly, in CEO 77-125 we found that a director of curriculum could not sell athletic supplies under Section 112.313(3) in the absence of an exemption under Section 112.313(12), despite the fact that the curriculum director had no purchasing authority and no authority over athletic programs.

Accordingly, we find that a prohibited conflict of interest exists in your retention as School Board Attorney while you are employed by the School Board as Labor Relations Specialist.