CEO 94-33 -- July 14, 1994

CONFLICT OF INTEREST

SCHOOL TEACHER CHANGING TITLE AND PUBLISHER

OF BOOK REQUIRED FOR HIS COURSE FROM

WHICH HE RECEIVES ROYALTIES

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

SUMMARY:

CEO 92-28 is not affected by a change in the title, publisher, and narrative of a book authored by a criminal justice training school teacher and approved by the Florida Criminal Justice Standards and Training Commission, where the book is required by the teacher of his students attending basic recruit courses. The "sole source exemption" of Section 112.313(12)(e), Florida Statutes, is still applicable to negate conflicts under Section 112.313(7)(a), Florida Statutes.

QUESTION:

Would CEO 92-28 change were you, a criminal justice training school teacher who authored a book on self-defense tactics approved by the Florida Criminal Justice Standards and Training Commission and required of your student recruits, to change the book title and publisher and improve the book's narrative?

Your question is answered in the negative.

In your letter of inquiry, you ask whether our opinion in CEO 92-28 would change were you to change the title and publisher of a book you authored on self-defense tactics which you require of your students attending basic recruit courses and of instructors taking instructor-training courses. In CEO 92-28, we relied on the following facts provided to us by an assistant general counsel with the Florida Department of Law Enforcement:

* The Central Florida Criminal Justice Institute ("Institute") where you are employed is part of the Orange County Public School System and is regulated by the Criminal Justice Standards and Training Commission (CJSTC).

* Your book and one written by the Executive Director of the Institute are the only textbooks available which discuss and analyze self-defense tactics officially approved by the CJSTC for Florida law enforcement and correctional officers.

* The two textbooks are used widely at other criminal justice training schools in the State.

* You have an agreement with the publisher of the book for payment of royalties to you for each copy sold.

* Your student/recruits purchase copies of the books from a private business which sells books and other supplies; however, the instructors are provided with their copies by the Institute, which purchases them from the publisher using criminal justice trust funds addressed in Section 934.25, Florida Statutes.

* As part of your public duties, you have the authority to require the use of certain books in your class.

You advise that you would like to change the book's title and publisher and improve the book's narrative; however, the other above-stated facts will remain the same.

In CEO 92-28, we discussed the applicability of the following provisions of the Code of Ethics for Public Officers and Employees to the facts related:

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.

[Section 112.313(3), Florida Statutes.]

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.]

EXEMPTION.--. . . no person shall be held in violation of subsection (3) or subsection (7) if:

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.]

Because we had no information indicating that you had the required relationship to or material interest in the publishing company referenced in CEO 92-28 necessary to present a prohibited conflict of interest under Section 112.313(3), we did not find that provision applicable. We also have no indication here that you would have a prohibited conflict of interest under Section 112.313(3) as a result of your relationship with your new publisher. However, because of your receipt of royalty payments from the publisher for books sold to the Institute for use by instructor-training students, we found that presumptively you would be in violation of the first part of Section 112.313(7)(a) by having or holding a contractual relationship with a business entity which is doing business with your agency. In addition, we found that there would exist the potential of a continuing or frequently recurring conflict between your private interests and the faithful performance of your public duties under the theory that you would be tempted to use your public position to select books which would generate a private profit for yourself, in violation of the second part of Section 112.313(7)(a). Inasmuch as the facts forming the basis for our conclusion will not change, we find that unless one of the exemptions of Section 112.313(12) apply, violations of both the first part and second part Section 112.313(7)(a) will still exist.

In reaching our conclusion that no prohibited conflict existed, we found that the "sole source exemption" provided for in Section 112.313(12)(e) applied because your book and the book written by the Executive Director of the Institute were the only books which teach defensive techniques officially approved by the CJSTC, the public entity charged with that duty. We find that this opinion is not affected by a change in the title or the publisher of the book or in what the narrative says. As long as there are no similar materials on the market from a source other than your publisher, the "sole source exemption" remains applicable. Therefore, as we previously advised, you should use our Form 4A, Disclosure of Business Transaction, Relationship, or Interest, to make the disclosure to the school district board necessary to avail yourself of the protection of this exemption.

Accordingly, under the circumstances set forth above, we find that our opinion in CEO 92-28 is not affected by your changing the title, publisher, and narrative of a book from the sale of which you receive a royalty.