CEO 90-41 -- April 26, 1990

CONFLICT OF INTEREST

DEPARTMENT OF EDUCATION EMPLOYEE CONTRACTING WITH BUSINESS WHICH IS CONDUCTING RADON TESTING FOR SCHOOL DISTRICT

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

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a corporation owned by a Program Specialist III in the Bureau of Management Systems and Services of the Department of Education to contract with a company which is providing radon testing for a county public school district. The employee would not have a contract with a business entity subject to the regulation of his agency, and no information has been provided which would indicate his conducting radon testing in the schools would impede his public duties or create a frequently recurring conflict with them. CEO 87-9 and CEO 83-29 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, an employee of the Department of Education in the Division of Public Schools, Food and Nutrition Section, to own a corporation which is contracting with a business which in turn is providing radon testing for a public school district?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry, you advise that you are employed by the Department of Education as a Program Specialist III in the Food and Nutrition Section, Division of Public Schools. Your job description states that your duties and responsibilities relate to the school lunch, breakfast, special milk, and related programs. These duties include assessing technical assistance needs in areas of purchasing and warehouse management; providing technical assistance to sponsors in school districts, non-public schools, and public agencies in the areas of purchasing and warehouse management; planning and interpreting program requirements (laws, regulations, etc.) in the area of purchasing and warehousing for sponsors; recommending changes to State Board of Education rules in areas of purchasing and warehousing; preparing State recommendations for modification, deletion, or agreement to federal laws or regulations; assisting in development of standards and criteria for compliance monitoring in the areas of purchasing and warehousing; and assisting in collecting needs assessments.

You also state that you own and operate a small business corporation which conducts building inspections. You wish to subcontract with a separate business located out of town which is going to submit a bid to conduct radon testing for the local school board. Should the other business be awarded the bid, it will seek to contract with other local businesses for additional persons to conduct radon testing. You have no ownership interest in the other business and wish for your business to contract with this business to provide radon testing services should the latter be awarded the bid.

You state that contracts for radon testing by public schools probably would fall under the jurisdiction of the Bureau of Facilities Planning, Budgeting, and Financial Management to the extent they may be reviewed by the Department of Education. Radon testing is regulated by the Department of Health and Rehabilitative Services, however, not by the Department of Education. You work in the Bureau of Management Systems and Services, which you state does not review contracts for radon testing.

In regard to your question, Section 112.313(3), Florida Statutes, provides:

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 of 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.

Since you would not be acting in an official capacity to purchase your own services and you have not indicated that you privately would be engaged in trying to sell your services to the Department of Education, Section 112.313(3) would not apply.

Section 112.313(7)(a), Florida Statutes, states:

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.

In regard to the first sentence of this Section, it would appear that the school district would be subject to the regulation of your agency, the Bureau of Education Financial Systems and Management. See CEO 83-29. It does not appear, however, that you would have a contractual relationship with the school district. Rather, you would have a contract with your private corporation which in turn would be doing business with another private business. In past opinions, we have determined that a contract with one's private corporation which is contracting with a company doing business with one's agency does not fall within the prohibition of the first sentence of Section 112.313(7)(a). See CEO 87-9.

In regard to the second sentence, we note that your duties with the Department of Education, as you have described them, relate to the school lunch and related programs. Your duties do not involve any responsibility in regard to radon testing or similar activities in public schools. You have not provided us with any information which would indicate that your conducting radon testing in the schools would create a continuing conflict with your responsibilities in the school lunch or related programs. Nor have we been provided with information that indicates you would be impeded in the performance of your regulatory public duties by conducting these tests.

Accordingly, we find that no prohibited conflict of interest would be created were your company to contract with a separate private business which is conducting radon testing in county schools.