CEO 88-14 -- March 16, 1988

CONFLICT OF INTEREST

SCHOOL ASSISTANT PRINCIPAL DEVELOPING DEVICE

SOLD TO SCHOOL DISTRICT AND SCHOOLS WITHIN DISTRICT

To: Mr. Austin O. Huhn, II, Assistant for Community Education, Key Biscayne Community School (Key Biscayne)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were an electronic device developed by a public school assistant principal to be sold by a corporation in which he has no interest to the school system which employs him or to schools within the system other than the one at which he serves. Sales to the assistant principal's school are permitted only if the terms of one or more of the exemptions contained in Section 112.313(12)(e) and (f), Florida Statutes, are met.

QUESTION:

Would a prohibited conflict of interest be created were an electronic device developed by you, a public school assistant principal, to be sold by a corporation in which you have no interest to the school system in which you work or to schools within that system?

Your question is answered in the negative, subject to the limitations expressed below.

In your letter of inquiry you advise that you serve as Assistant Principal for Community Education at the Key Biscayne Community School within the Dade County Public School System. You also advise that you have developed, on your own time and in your own facilities, an electronic device for interfacing computer output and video tape recorded output and for displaying either upon a television screen. You advise that you have applied for a patent on this device, which will be manufactured and sold by an independent corporation in which you have no interest, office, or other connection. You will receive the equivalent of a royalty for each unit sold by the company. You advise that there is no other device of this type available in its price range, although complex, expensive systems exist for the purpose of accomplishing a similar function.

You further advise that the device may be marketed by the company to schools or school districts for educational purposes. You will not be involved personally in marketing the device. Nor will you be involved in your public capacity in the recommendation for purchase or the purchase of the item by any school within your School System.

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 a public employee from having a contractual relationship with a business entity which is doing business with his agency.

The term "agency" is defined in Section 112.312(2), Florida Statutes, as

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.

Under this definition, as noted in previous opinion CEO 79-83, the "agency" of an assistant principal would be the public school at which he serves. Therefore, Section 112.313(7) would not prohibit the purchase of the device by the County School System or by any school within the system other than the one at which you are employed.

However, there are two exemptions in the Code of Ethics which could permit sales to be made to your school. Section 112.313(12)(f), Florida Statutes, exempts a transaction the total amount of which does not exceed $500. Given the price at which you expect the device to sell, approximately $60, it appears that this exemption potentially would be applicable. In addition, Section 112.313(12)(e), Florida Statutes, provides an exemption where

[t]he 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.

In opinions CEO 78-24 and CEO 81-27 we found that this exemption would be applicable to a patented item and to a copyrighted testing system. Please note that this exemption requires disclosure to be made to the School Board prior to the transaction. We have promulgated CE Form 4A, Disclosure of Business Transaction, Relationship, or Interest, for use in making this disclosure. Under the circumstances, we would suggest that you inform the corporation which manufactures and sells the device that you should be told of any pending transaction with your school which would exceed $500, in order to enable you to make the appropriate disclosure prior to the transaction.

Accordingly, subject to the above limitations, we find that no prohibited conflict of interest would be created were the electronic device developed by you to be sold by the corporation to the School System which employs you or to any schools within the system.