CEO 79-78 -- November 16, 1979

CONFLICT OF INTEREST

EXECUTIVE DIRECTOR OF STATE BOARD OF ACCOUNTANCY TEACHING COURSE AT STATE UNIVERSITY

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

Prepared by: Phil Claypool

SUMMARY:

Reference is made to CEO 77-28, in which the commission advised that, under s. 112.313(7), F. S., the Executive Director of the State Board of Accountancy was prohibited from receiving compensation for teaching a course for continuing professional education credit under the Board of Accountancy's standards for such courses. However, based in part on legislative reorganization of the Department of Professional Regulation under Ch. 79-36, Laws of Florida, which distributes among three departmental divisions those functions formerly performed by a given board, and further based on the executive director's proposal in this instance to teach a course for a public university rather than for fulfillment of a board requirement, no prohibited conflict of interest is deemed to be created when the Executive Director of the State Board of Accountancy teaches, for compensation at a state university, a course on accounting ethics.

QUESTION:

Would a prohibited conflict of interest be created were the Executive Director of the State Board of Accountancy to teach, for compensation at a state university, a course relating to the accounting profession?

Your question is answered in the negative.

By an act of the Legislature signed into law on May 10, 1979, the Department of Professional Regulation was reorganized, and many of the practice acts of the department's boards revised substantially. For example, Ch. 79-36, Laws of Florida, has removed from each professional board all of its employees; these positions have been transferred to the Department of Professional Regulation. The executive directors of these boards now are hired by you with the consent of the members of the appropriate board. Each executive director will have a staff of employees who will be department employees, although they will work primarily for that executive director and board.

Under Ch. 79-36, Laws of Florida, the department has been organized into three divisions. The various professional boards, their executive directors, and staff will be within the Division of Professions. The Division of Legal Services is to be composed of all department attorneys, investigators, and analysts. Finally, the Division of Administrative Services is to be responsible for finance and accounting services, for the preparation and administration of examinations, and for continuing-education and registration matters. Thus, the functions which formerly were performed by a given board now are split among that board and the three divisions of the department.

In a telephone conversation with our staff, the General Counsel of the Department advised that ____, the Executive Director of the Board of Accountancy, has proposed teaching a class on accounting ethics at the University of Florida for compensation. You question whether the Code of Ethics for Public Officers permits him to do so.

The Code of Ethics 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.]

In advisory opinion CEO 77-28, we advised that under this provision the subject executive director could not receive compensation for teaching a similar course for continuing, professional education credit under the Board of Accountancy's standards for such courses. However, here the subject executive director proposes teaching a course for a public university. In addition, as noted above, recent statutory revisions have had a substantial impact on the responsibilities of the Board of Accountancy and its executive director.

The first portion of the above-quoted provision prohibits the subject executive director from having a contractual relationship with an agency which is subject to the regulation of his agency. As he would receive compensation for the proposed teaching, we find that he would have a contractual relationship with the University of Florida, an "agency" as that term is defined in s. 112.312(2), F. S. See CEO 76-21, in which we advised that s. 112.313(7) would not apply to a state officer teaching a university course without receiving compensation. In addition, we find that the subject executive director's "agency" is the Board of Accountancy because his primary responsibilities relate to that board, even though he is an employee of the department's Division of Professions.

However, we find that the University of Florida is not subject to the regulation of the Board of Accountancy. We note that the board is authorized to determine what college and university courses and what number of hours constitute a major in accounting, such a major being required under certain circumstances in order to obtain a license from the department as a certified public accountant. Chapter 79-202, s. 5(3), Laws of Florida. As a practical matter, the board's designation of courses constituting a major in accounting may have an effect on the courses offered by the university toward an accounting major. Nevertheless, this is not a requirement legally imposed on the university by the board, but rather a requirement imposed on applicants who wish to become certified public accountants. In this respect, we also note that the board has advised that neither its present rules nor its proposed rules require that the proposed course be included as an accounting course for credit as a major in accounting.

Nor do we find that the subject executive director is prohibited from teaching the proposed course by the second portion of s. 112.313(7)(a). There would be no continuing or frequently recurring conflict between his private interests and the performance of his public duties, nor would the job impede the full and faithful discharge of his public duties.

We advised that this provision would be violated were the subject executive director to teach a course for continuing, professional education credit, as his responsibilities to the board required him to assist in evaluating and determining the credit to be granted for such courses. Here, on the other hand, it is the university's responsibility to evaluate and oversee the proposed course. To the extent that the board could regulate or evaluate the course by requiring it for certification as a certified public accountant, it has not done so.

Moreover, the subject executive director has no responsibilities in the determination of whether the proposed course would qualify for continuing-education credit or whether and to what extent the subjects of the proposed course would be tested on the licensure examination for admittance to the profession. The board has advised that, contrary to previous procedures, the decision of whether the proposed course would qualify for continuing-education credit now rests solely with the Committee on Continuing Professional Education, whose membership is determined by the board and whose decisions are reviewed by the board and the department's Division of Administrative Services. Thus the executive director will not participate in that decision. Similarly, the board advises, the preparation and administration of all licensing examinations is handled by the Division of Administrative Services of the department, whereas previously the executive director administered the public accounting examination on behalf of the board.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit the Executive Director of the State Board of Accountancy from teaching, for compensation at the University of Florida, a course on accounting ethics.