CEO 86-75 -- October 29, 1986

CONFLICT OF INTEREST

SCHOOL DISTRICT EMPLOYEE CONTRACTING TO PROVIDE SERVICES TO SCHOOL BOARD

To: Dr. Leonard Britton, Superintendent, Dade County Public Schools, Miami

SUMMARY:

A prohibited conflict of interest would be created were an assistant supervisor of a County School Board's Office of Educational Accountability to be employed by that Board's Office of Vocational, Adult, and Community Education as an educational measurement expert. Unless the services provided by the employee fall within one of the exemptions provided in Section 112.313(12), Florida Statutes, the employee would be selling services to his agency in violation of Section 112.313(3), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created were an assistant supervisor of the Dade County School Board's Office of Educational Accountability to be employed by that Board's Office of Vocational, Adult, and Community Education as an educational measurement expert?

Your question is answered in the affirmative.

In your letter of inquiry you advise that Dr. Yuwadee Wongbundhit is an assistant supervisor to the Dade County School Board's Office of Educational Accountability. Her responsibilities include conducting various studies and producing evaluation reports for the School District.

You advise that Dr. Wongbundhit has been offered a contract by the District's Office of Vocational, Adult, and Community Education to serve as an educational measurement expert during her nonworking hours. In this capacity she would be required to work five days to test item writing and review teams to assure use of proper test construction techniques and to review written test items prior to final printing. The total amount due under the contract is $750. You question whether this arrangement would be in violation of the Code of Ethics for Public Officers and Employees.

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), Florida Statutes (1985).]

This provision prohibits a public employee from acting in a private capacity to sell services to a political subdivision or any agency thereof if she is serving as an employee of that political subdivision. A district school board constitutes a political subdivision pursuant to Section 230.01, Florida Statutes (1985). Section 112.312(2), Florida Statutes (1985), defines the term "agency" to include "any public school." Therefore, a school district employee would be prohibited from selling her services to the school board which employs her or to any school within that district.

In some instances, we have found an exception to this general rule where a school teacher was not in a position to supervise, regulate, or make recommendations regarding the transacted business. However, in this case the subject employee serves as a middle level administrator within the School District. In a telephone conversation with our staff, an associate superintendent of the School District further advised that the subject employee could be placed on a team which would evaluate various District programs. Therefore, we are of the view that the rationale of previous opinion CEO 82-29 would be applicable here.

Nevertheless, the Code provides in Section 112.313(12), Florida Statutes (1985), a number of exceptions to the prohibition against doing business with one's agency. Paragraph (a) provides an exception when within a city or county, the business is transacted under a rotation system. Under (b), the subject employee could sell services to the school district when a system of sealed, competitive bidding is used and when suitable disclosure is made. Paragraph (d) allows certain emergency purchases, and (e) would permit the transaction if the employee is the only source of supply and there is also full disclosure. Paragraph (f) would permit a transaction which does not exceed $500.

In the case at hand, you advise that the contract was not awarded under a rotation system or pursuant to a system of competitive bidding. You further advise that the transaction would not qualify as an emergency purchase and that the subject employee was not the sole source of supply of these services within the School District. Additionally, the total amount of the contract would exceed $500.

Accordingly, we find that a prohibited conflict of interest would be created were the subject employee to contract to provide services to the District's Office of Vocational, Adult, and Community Education under the circumstances presented.