CONFLICT OF INTEREST
SCHOOL BOARD MEMBER EMPLOYED AS ADJUNCT FACULTY MEMBER
AT STATE COLLEGE OPERATING CHARTER HIGH SCHOOL
APPROVED BY SCHOOL BOARD
To: Mr. Robert D. Chilmonik, Member, Lee County School Board (Cape Coral)
A prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, does not exist where a school board member is employed as an adjunct faculty member at a state college that obtained approval from the school board to operate a charter high school. Under the circumstances presented, Section 112.316, Florida Statutes, applies to negate a literal reading of the first part of the prohibition and no prohibited conflict under the second part is indicated. CEO 08-28, CEO 06-23, CEO 97-7, CEO 90-51, and CEO 88-24 are referenced.
Is a prohibited conflict of interest created where a school board member is employed as an adjunct faculty member at a state college, where the college applied for and obtained approval from the school board to operate a charter high school?
Under the specific factual circumstances presented, your question is answered in the negative.
In your letter of inquiry and subsequent correspondence with our staff, we are advised that you are an elected member of the Lee County School Board and, in your private capacity, you teach computer science part-time at Edison State College—Lee Campus. You explain that the College recently applied for and obtained approval from the School Board to operate a charter high school in Lee County, which will open in Fall 2010. The College already is operating a charter high school at its Charlotte Campus. You ask whether your service on the School Board and your employment with the College creates a prohibited conflict of interest under the Code of Ethics for Public Officers and Employees.
The applicable statute is Section 112.313(7)(a), Florida Statutes, which provides:
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 or she 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 or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes (2009).]
The first part of Section 112.313(7)(a), Florida Statutes, prohibits you from having an employment relationship with an agency that is doing business with or regulated by the School Board. The second part of the statute prohibits you from having an employment relationship that creates a continuing or frequently recurring conflict between private interests and the performance of public duties, or which impedes the full and faithful discharge of public duties.
We previously have opined that a charter school is subject to the regulation of, and doing business with, it's sponsoring school district. See CEO 97-7. This is because of the approval process and ongoing monitoring functions set forth in Section 1002.33, Florida Statutes, for charter schools. In CEO 06-23, we concluded that a school board member had a prohibited conflict of interest where she was employed as an assistant principal by a management company that was hired to manage and operate a charter school. Although her employment was with a separate business entity than with the business entity actually contracting with the school district [thereby negating a possible conflict under the first part of Section 112.313(7)(a)], we concluded that the school board member's ability to objectively evaluate the performance of the charter school would be compromised if she continued to work there.
In your situation, you teach one course in computer science at the College as an adjunct faculty member. You indicate that you would not be teaching the charter high school's students; nor is it a course designed specifically for students who are preparing to become teachers. You further indicate that as a College employee, you would not receive any additional compensation or benefits from the approval to operate the charter high school and your employment and status would not be affected in any way.
In CEO 88-24, we opined that Section 112.313(7)(a) was violated where a school board member was a faculty member at a private university, where the school district and the university had a number of agreements and contracts between them that constituted "doing business" for purposes of the Code of Ethics. Had the university been a public institution, it is unlikely that we would have reached that result because we have rarely concluded that intergovernmental agreements or dealings constitute "doing business." This rationale is based on the purpose of the Code of Ethics—to prevent private gain at public expense, not to prevent dealings between governmental entities for the delivery of services to the public. See, for example, CEO 90-51. Subsequent to our adoption of CEO 88-24, the Legislature responded by enacting an exemption in Section 112.313(15), Florida Statutes, which provides:
ADDITIONAL EXEMPTION.—No elected public officer shall be held in violation of subsection (7) if the officer maintains an employment relationship with an entity which is currently a tax-exempt organization under s. 501(c) of the Internal Revenue Code and which contracts with or otherwise enters into a business relationship with the officer's agency and:
(a) The officer’s employment is not directly or indirectly compensated as a result of such contract or business relationship;
(b) The officer has in no way participated in the agency's decision to contract or to enter into the business relationship with his or her employer, whether by participating in discussion at the meeting, by communicating with officers or employees of the agency, or otherwise; and
(c) The officer abstains from voting on any matter which may come before the agency involving the officer's employer, publicly states to the assembly the nature of the officer's interest in the matter from which he or she is abstaining, and files a written memorandum as provided in s. 112.3143.
Although the exemption in Section 112.313(15), Florida Statutes, is not applicable here because the State College is not a 501(c) organization under the Internal Revenue Code, we are advised by the School Board Attorney that you essentially complied with the conditions of the exemption when the charter high school was considered by the School Board. Your employment is not compensated as a result of the School District's approval of the College's charter high school, you did not advocate for the charter high school before the school district, and you abstained from voting on matters involving the charter high school. We are further advised that your future conduct will also be in compliance with these conditions. In addition, we note that Section 1002.33(5)(b)4, Florida Statutes, encourages community colleges and school districts to collaborate on the development of charter high schools such as the one approved for Lee County. The statute provides:
A community college may work with the school district or school districts in its designated service area to develop charter schools that offer secondary education. These charter schools must include an option for students to receive an associate degree upon high school graduation. District school boards shall cooperate with and assist the community college on the charter application. Community college applications for charter schools are not subject to the time deadlines outlined in subsection (6) and may be approved by the district school board at any time during the year. Community colleges may not report FTE for any students who receive FTE funding through the Florida Education Finance Program.
Based on the foregoing reasons, we believe that it would be appropriate to apply Section 112.316, Florida Statutes, to the circumstances outlined herein. It provides:
CONSTRUCTION.—It 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 or her duties to the state or the county, city, or other political subdivision of the state involved.
We have applied this statute to "construct out" a mechanical or literal reading of a conflict under the first part of Section 112.313(7)(a), Florida Statutes, in situations in which a public officer had no public duties or public responsibility he would be tempted to compromise in order to benefit himself or his employer. See CEO 08-28.
Accordingly, under the circumstances presented, we find that a prohibited conflict of interest does not exist where you, a School Board member, also are employed as an adjunct instructor at a State College that obtained approval from the School Board to operate a charter high school.
ORDERED by the State of Florida Commission on Ethics meeting in public session on December 4, 2009 and RENDERED this 9th day of December, 2009.
Cheryl Forchilli, Chair