CEO 76-139 -- July 26, 1976

CONFLICT OF INTEREST

EMPLOYEE OF DEPARTMENT OF EDUCATION CANDIDATE FOR DISTRICT SCHOOL BOARD

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

Prepared by: Bonnie Johnson

SUMMARY:

A public officer is prohibited from holding employment with an agency subject to the regulation of or doing business with the agency of which he is an officer. Fla. Stat. s. 112.313(7)(a)(1975). The Code of Ethics further provides that a public employee shall not hold office as a member of a governing board which serves as his employer. Fla. Stat. s. 112.313(10)(a)(1975). Neither provision is applicable, however, where a secretarial employee of the State Department of Education wishes to qualify as a candidate for a district school board, for the board does not regulate the Department of Education, does not do business with the department for purposes of the Code of Ethics, and does not constitute the potential candidate's employer. Assuming that school board meetings will not unduly interfere with the working hours of the department and that appropriate leave is taken for school board business conducted during regular working hours, no conflict of interest would be created were said employee of the Department of Education to be elected to membership on a district school board.

QUESTION:

Would a prohibited conflict of interest be created were I, a secretarial employee of the Department of Education, to be elected to a district school board in the state?

Your question is answered in the negative.

You inform us in your letter of inquiry that you are employed full-time with the Florida Department of Education, Division of Schools, Early Childhood and Elementary Education section, in a secretarial capacity. Your job classification is that of a Secretary IV, which position carries no policy or decision-making authority. Privately, you wish to qualify as a candidate for a seat on the ____ County School Board, in which county you reside.

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, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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. [Fla. Stat. s. 112.313(7)(a)(1975).]

Accordingly, a public officer may not hold employment with an agency subject to the regulation of or doing business with the agency of which he is an officer. Were you to be elected to the school board, you would become a public officer pursuant to the definition of that term contained in s. 112.313(1)(1975). Accordingly, you would be prohibited from holding employment with an agency subject to the regulation of or doing business with the school board. The Department of Education is not regulated by district school boards, and we have previously determined that transactions between units of government do not constitute "doing business" for purposes of the Code of Ethics. See CEO 76-2. We do not perceive that your employment with the Department of Education would interfere with the discharge of your duties as a school board member, inasmuch as your job responsibilities do not include decision-making as to educational policy. Accordingly, we find no prohibited conflict in the proposed situation under this provision of the law.

The Code of Ethics further provides as follows:

No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his employer while, at the same time, continuing as an employee of such employer. [Fla. Stat. s. 112.313(10)(a)(1975).]

Under terms of this provision you, as a state employee, are prohibited from holding office as a member of a governing board which serves as your employer. In the instant case, however, your employer is the Department of Education, not the school board to which you seek election. Consequently, no violation of this subsection would be constituted should you be elected.

Section 112.316 of the Code of Ethics stipulates that [i]t is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved.

You advise us in your letter of inquiry that school board meetings are held once monthly with special meetings called as needed. Assuming that such meetings will not unduly interfere with your working hours at the Department of Education, and that appropriate leave will be taken for school board business conducted during your regular working hours, we feel that service on the school board will not interfere with the full and faithful discharge of your duties as a state employee.

In summary, we find no conflict of interest under the Code of Ethics were you, a secretary in the Department of Education, to be elected to membership on a district school board.