CEO 87-83 -- October 29, 1987

CONFLICT OF INTEREST

STATE BOARD OF INDEPENDENT POSTSECONDARY VOCATIONAL,

TECHNICAL, TRADE AND BUSINESS SCHOOLS EMPLOYEE

OWNING SCHOOL LICENSED BY BOARD

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

SUMMARY:

A prohibited conflict of interest would be created were an employee of the State Board of Independent Postsecondary Vocational, Technical, Trade and Business Schools of the Department of Education to own a school which would be licensed by the Board. Section 112.313(7), Florida Statutes, prohibits a public employee from having any employment or contractual relationship with a business entity which is subject to the regulation of his agency.

QUESTION:

Would a prohibited conflict of interest be created were you, a Program Specialist with the State Board of Independent Postsecondary Vocational, Technical, Trade and Business Schools, Department of Education, to own a school which would be licensed by the Board?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you serve as a Program Specialist II with the State Board of Independent Postsecondary Vocational, Technical, Trade and Business Schools of the Department of Education. You question whether you may own a school which would be licensed by the Board.

The State Board is responsible for administering the provisions of Sections 246.201 through 246.231, Florida Statutes, which require private postsecondary, vocational, technical, trade, and business schools to be licensed. The Board also is authorized to impose disciplinary action on such schools, to issue cease and desist orders, and to seek injunctions in court against schools which are operating in violation of these provisions. As a Program Specialist II, you are responsible for assisting in the review of new and renewal school applications, for providing technical assistance to applicants, for collecting and analyzing materials relating to licensure, for conducting periodic on-site visits of licensed schools, for conducting staff development workshops for licensed schools, and for conducting preliminary investigations into complaints filed with the Board office, among other responsibilities.

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 (1985).]

This provision prohibits a public employee from having any employment or contractual relationship with a business entity which is subject to the regulation of his agency.

We previously have advised that one who owns a business entity has an employment or contractual relationship with that business entity. See CEO 78-93 and CEO 79-16. A private school would be a "business entity," the definition of which term is as follows:

'Business entity' means any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self- employed individual, or trust, whether fictitiously named or not, doing business in this state. [Section 112.312(3), Florida Statutes (1985).]

For purposes of the Code of Ethics, we are of the opinion that your "agency" is the State Board. The term "agency" is defined as follows:

'Agency' means 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. [Section 112.312(2), Florida Statutes (1985).]

Under Section 246.205, Florida Statutes, the State Board is assigned to the Department of Education only for administrative functions but is responsible for exercising independently its other powers, duties, and functions. Finally, we find that a school licensed by the State Board would be subject to the regulation of the Board on the basis of the Board's responsibility for ensuring that private schools within its jurisdiction comply with the requirements of law.

Accordingly, we find that a prohibited conflict of interest would be created were you to own a school which would be licensed by the State Board while being employed as a Program Specialist with the Board.