CEO 87-50 -- June 11, 1987

CONFLICT OF INTEREST; VOTING CONFLICT

SCHOOL BOARD MEMBER'S SPOUSE

SEEKING POSITION OF SCHOOL SUPERINTENDENT

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

SUMMARY:

No prohibited conflict of interest would be created were the spouse of a district school board member to serve as superintendent of schools for the district. Section 112.313(3), Florida Statutes, would not be violated as the school board would not be purchasing services from a business entity of which the spouse is an owner, officer, partner or director. Sections 112.313(7) and (10), Florida Statutes, do not apply to conflicts of interest based upon a spouse's activities. However, the school board member would be prohibited by Section 112.3143, Florida Statutes, from voting on the selection of the superintendent of schools while his spouse remains a candidate for that position.

QUESTION 1:

Would a prohibited conflict of interest be created were the wife of a district school board member to serve as superintendent of schools for the district?

This question is answered in the negative.

In your letter of inquiry, you advise that .... serves as a member of the Lee County School Board. You also advise that his wife, a principal of a school in the District, has applied for selection by the School Board to the position of Superintendent of Schools for 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. 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 officer from acting in an official capacity to purchase any services for his agency from a business entity of which his spouse is an owner, officer, partner, or director. Here, however, the School Board is not purchasing any services for the District, and the Superintendent would not constitute a business entity which would be selling services to the District. Rather, the School Board is in the process of deciding whom to hire as an employee of the District. See CEO 83-72, concerning a city commissioner's spouse being employed by the city as a firefighter.

The Code of Ethics for Public Officers and Employees also provides:

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), Florida Statutes (1985).]

EMPLOYEES HOLDING OFFICE. -- 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. [Section 112.313(10)(a), Florida Statutes (1985).]

Section 112.313(7)(a) prohibits a public official from having certain types of employment or contractual relationships which would conflict with his public duties. Section 112.313(10) would prohibit a school board member from being employed by the school district. Clearly, neither of these prohibitions are applicable to situations where an official may be presented with a conflict of interest on the basis of the activities or interests of his spouse.

Accordingly, we find that no prohibited conflict of interest would be created under the Code of Ethics were the wife of the subject School Board member to serve as Superintendent of Schools for the District. Please be advised that we have no authority to render an advisory opinion about the applicability of the anti-nepotism law, Section 116.111, Florida Statutes. You may wish to contact the Attorney General for an interpretation of this law.

QUESTION 2:

Is a district school board member prohibited by Section 112.3143, Florida Statutes, from voting on the selection of the superintendent of schools for the district, where his wife has applied to serve in that position?

Regarding voting conflicts of interest for a local official, the Code of Ethics provides:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one- acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes (1985).]

This provision prohibits a local official from voting on a matter that would inure to his special private gain, requires the official to announce the nature of his conflict of interest at the meeting during which the vote occurs, and requires the filing of a memorandum of voting conflict (Commission on Ethics Form 8B) within 15 days after the vote to be incorporated as part of the minutes of the meeting. We previously have advised that if the matter being voted on would inure to the special private gain of the spouse of a public officer and the spouse contributes to the support of the public officer, the matter would inure to the special private gain of the officer. See CEO 83-59.

In CEO 79-76, we considered the question of whether a school board member would have a voting conflict of interest in measures before the school board which might affect the possible sale to the school board of an office building owned by the insurance company which employed him. We advised that if the measure would have the effect of authorizing the purchase of the office building from the insurance company or of eliminating from consideration the purchase of that building, then a voting conflict would be created. We also noted that if, in the decisionmaking process, the school board were to eliminate the possibility of purchasing the office building from the insurance company, the school board member would not have a voting conflict in subsequent proceedings.

Similarly, we are of the opinion that the subject School Board member would be prohibited from voting on measures which would have the effect of selecting his spouse as Superintendent or of eliminating her or her competitors from consideration. However, if she is eliminated as a candidate in the selection process, the School Board member would not be prohibited from voting in subsequent proceedings to decide who will be hired as Superintendent. Finally, although Section 112.3143, Florida Statutes, would not prohibit the School Board member from participating in discussions relating to the selection process, he has advised that he will not participate in the selection process.

Your question is answered accordingly. Please note that we have not addressed the question of what measures might come before the School Board and present the School Board member with a voting conflict of interest, should the member's spouse serve as Superintendent and he remain a member of the School Board.