CEO 85-15 -- March 6, 1985

CONFLICT OF INTEREST

JUNIOR COLLEGE INSTRUCTORS AUTHORING AND SELLING TEXTBOOK TO COLLEGE BOOKSTORE

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

SUMMARY:

A junior college instructor may sell textbooks to the college or to a business entity which has contracted with the college to operate its bookstore so long as the terms of the "sole source" exemption in Section 112.313(12)(e), Florida Statutes, are met. Otherwise, the instructor would be selling goods to his agency in violation of Section 112.313(3), Florida Statutes, or would have a contractual relationship with a business entity doing business with his agency, in violation of Section 112.313(7)(a), Florida Statutes.

QUESTION:

Does a prohibited conflict of interest exist where a junior college instructor authors and sells a textbook to the college bookstore?

Your question is answered in the affirmative, subject to the exemption noted below.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that Ms. Jeanette P. Watford and Ms. Dorothy T. Clemmons are instructors in the English Department of Chipola Junior College. You also advise that for a number of years the College has offered courses in remedial English. Certain faculty members began preparing material to supplement textbooks used in these courses, with the materials initially being printed and distributed to students at the expense of the College. However, as the materials expanded, the College was no longer able to bear the cost of publication and distribution.

The subject instructors then expanded on the supplemental materials and prepared a textbook for remedial English. The instructors at that time were under contract as full-time faculty members at the College, although the textbook was prepared outside their hours at the College, and College facilities and funds were not used. When the textbook was completed, it was copyrighted by the instructors and printed at their expense.

After review under the usual textbook selection procedure, the College decided to use the textbook written by the instructors in its remedial English courses. In a telephone conversation with our staff, you advised that the subject instructors were members of the selection committee at that time, although they did not form a majority of the committee and did not teach remedial English courses. The Selection Committee's decision was given to the College bookstore, which purchased from the instructors copies of their textbook for resale to students enrolled in remedial English classes.

During fiscal years 1982 and 1983, the College bookstore was owned and operated by the College as an auxiliary enterprise. During those years, the instructors were paid by the College for the wholesale cost of the textbooks purchased for resale; the instructors did not receive a share in any proceeds received by the bookstore from its resale of the books. During the 1984 fiscal year, the College bookstore was leased to a private individual, who purchased copies of the textbook from the instructors for resale to students enrolled in remedial English courses. The instructors realized no financial benefit from the bookstore's resale of the books in this instance, either.

The Code of Ethics for Public Officers and Employees prohibits an employee of an agency from acting in a private capacity to sell any goods to his agency. Section 112.313(3), Florida Statutes. In addition, Section 112.313(7)(a), Florida Statutes, prohibits a public employee from having a contractual relationship with a business entity which is doing business with his agency.

However, the Code of Ethics provides an exemption for sales where:

The business entity involved is the only source of supply within the political subdivision of the officer or employee and there is full disclosure by the officer or employee of his interest in the business entity to the governing body of the political subdivision prior to the purchase, rental, sale, leasing, or other business being transacted. [Section 112.313(12)(e), Florida Statutes (1983).]

This provision exempts sales made by a sole source of supply where disclosure is made to the governing body of an employee's agency prior to the sale being transacted. The disclosure should be made on Commission on Ethics Form 4A, Disclosure of Business Transaction, Relationship or Interest. We previously have advised that a business selling copyrighted materials would qualify as a sole source for purposes of this exemption. See CEO 81-27.

Accordingly, we find that the subject instructors may sell textbooks to the College or to a business entity which has contracted with the College to operate its bookstore so long as the terms of the exemption in Section 112.313(12)(e), Florida Statutes, are met.