CEO 89-17 -- April 13, 1989

CONFLICT OF INTEREST

SCHOOL BOARD MEMBER CONSULTING WITH ARCHITECTURAL

FIRM DOING BUSINESS WITH SCHOOL BOARD

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

SUMMARY:

A prohibited conflict of interest would be created were a School Board member to serve as a consultant to an architectural firm doing business with the School Board, even though his services would not involve any work being performed by the firm for the School Board. Section 112.313(7), Florida Statutes, prohibits a public officer from having any employment or contractual relationship with a business entity which is doing business with his agency. None of the exemptions to this prohibition which are contained in Section 112.313(12), Florida Statutes, would be applicable. CEO's 81-28 and 87-7 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were a School Board member to accept a position as a consultant to an architectural firm which has been selected to do business with the School Board in accordance with the Consultants' Competitive Negotiation Act, where the Board member's services would not involve any work being performed by the firm for the School Board?

Your question is answered in the affirmative.

In your letter of inquiry you advise that . . . serves as a member of the Pinellas County School Board. You also advise that he has been offered a position as a consultant to an architectural firm that does business throughout the State. Based on his background in teaching and administration and his service on numerous state educational committees, he would assist the architectural firm in interpreting the curriculum and educational needs of school systems as they develop schematic designs for proposed school buildings. In addition, he may be asked to assist the firm in preparing its presentations to architect selection committees.

You also advise that the architectural firm performs services for the School Board, having been selected by the Board pursuant to the Consultants' Competitive Negotiation Act (Section 287.055, Florida Statutes). The subject Board member understands that he will not be allowed to render any assistance to the firm on any work being performed for the School Board; his services would be limited to projects that the firm is engaged in outside of the county. He also would not participate in any phase of the School Board's architect selection process and would not vote on any contract or amendment to a contract with the firm.

The Code of Ethics for Public Officers and Employees 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), Florida Statutes (1987).]

This provision prohibits the subject School Board member from having an employment or contractual relationship with a business entity which is doing business with his agency, the School District.

In previous opinions involving this prohibition we have found, for example, that a county commissioner would be prohibited from being employed as a salesman with an engineering company doing business with the county (CEO 81-28), and that an erosion prevention district commissioner would be prohibited from providing consulting services to an engineering firm doing business with the district (CEO 87-7). Similarly, here, we conclude that if the subject School Board member were to provide consulting services to the architectural firm he would have an employment or contractual relationship with a business entity doing business with his agency, in violation of Section 112.313(7).

We have reviewed the exemptions to this prohibition which are provided in Section 112.313(12), Florida Statutes, and have determined that none of these exemptions would apply to the situation here. For example, Section 112.313(12)(b) could allow the Board member to consult with the firm if the business transacted between the firm and the School Board were handled through a system of sealed, competitive bidding. However, the firm's work for the School Board was awarded pursuant to the Consultants' Competitive Negotiation Act rather than through sealed, competitive bids; we have found that the requirements of that Act do not comply with the requirements of the competitive bid exemption in Section 112.313(12)(b). See CEO 81-28. In addition, it does not appear that the architectural firm could be considered to be the only source of supply within the county for the type of services it renders to the School Board. Therefore, the sole source exemption contained in Section 112.313(12)(e) would not be applicable. See also CEO 77-51 and CEO 85-11.

Accordingly, we find that a prohibited conflict of interest would be created were the subject School Board member to accept a position as a consultant to an architectural firm which is doing business with the School Board.