No prohibited conflict of interest would be created under Sections 112.313(3) and 112.313(7)(a), Florida Statutes, were a school board member to be employed as president of a school uniform company that has been designated the "preferred vendor" by many of the district's schools. The school board member's company sells uniforms to the parents of individual school children, not to the school district or its schools. However, because of the school board's authority over its personnel, a school board member would be prohibited from personally soliciting school district personnel and school-related organizations like uniform committees, parent-teacher organizations, and school advisory councils to designate his company as the "preferred vendor" for a school's uniform.
Would a prohibited conflict of interest be created where you, a candidate for the school board, are employed as president of a school uniform company that is designated the "preferred vendor" by nearly half of the district's schools that require uniforms?
Under the circumstances presented, your question is answered in the negative.
In correspondence with our staff, you explain that your family owns a uniform company and that you have been employed as its president for twenty years. A majority of the public schools in Dade County have instituted a mandatory uniform policy pursuant to the procedures set forth in Miami-Dade County Public School Board 6Gx13-5C-1.031. This policy also allows schools to establish a uniform committee to select uniforms, and for the committee to designate a "preferred vendor." In this regard, the School Board's policy states:
Schools are eligible to participate in a mandatory uniform program, if the following conditions are met:
. . .
B. The school establishes a uniform committee that adequately represents administrators, teachers, students, and parents and follows guidelines promulgated by the Superintendent for selection of uniforms. The committee cannot select a uniform committee as an "official uniform company" for a school. The committee can identify a uniform company as a "preferred" option; however, parents must be advised that the selected uniform or a generic option can be purchased from a variety of sources, such as other uniform companies, department stores, catalogs, etc. School patches or logos are optional.
You indicate that your company has been designated the "preferred vendor" in over 150 of the District's schools. You explain that the "preferred vendor" program is an informal, non-contractual, non-exclusive relationship between individual schools and their "preferred" choice of a school uniform vendor. The schools send out correspondence to parents and list on the school's website information about the school's uniforms that includes the "preferred vendor's" name, along with an explanation that uniforms may be purchased from any source, not just from the "preferred vendor." You question whether your employment with a school uniform company and its designation as "preferred vendor" by many of the District's schools would create a prohibited conflict of interest if you were to be elected to the School Board.
The Code of Ethics for Public Officers and Employees provides in relevant part:
DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's 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 the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she 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 or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to:
(a) October 1, 1975.
(b) Qualification for elective office.
(c) Appointment to public office.
(d) Beginning public employment. [Section 112.313(3), Florida Statutes (2009).]
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).]
Absent "grandfathering" or the applicability of an exemption under Section 112.313(12), Florida Statutes, the first part of Section 112.313(3) prohibits a public officer acting in his official capacity from purchasing goods from a business entity of which he is, among other things, an officer, and the second part of Section 112.313(3) prohibits a public officer from acting in a private capacity to sell goods to his political subdivision or any agency of his political subdivision. Also, absent grandfathering or applicability of an exemption, Section 112.313(7)(a) prohibits a public officer from holding employment or a contractual relationship with a business entity which is doing business with the officer's public agency.
Sections 112.313(3) and 112.313(7)(a), Florida Statutes, are inapplicable to your situation because there is no indication that the School Board or District schools are purchasing uniforms from your company. You have also represented that the "preferred vendor" designation is an informal, non-contractual, non-exclusive relationship. In CEO 80-35, Question 2, we opined that the Code of Ethics would not be violated where an assistant superintendent and a school principal owned a business selling sporting goods and gym supplies to students or teachers as private individuals, but we warned the requestors, who were both high-ranking employees in the school system, to be extremely careful to avoid both the use of position and the appearance of such use in connection with sales of athletic supplies to individual customers. In CEO 75-196, where a school board member owned an interest in a trophy shop that sold items to school-related organizations, we warned against the personal solicitation of school advisors and personnel, who may have felt "pressured" to purchase from the school board member because of the power of the school board to hire, terminate, and exert other significant influence over school personnel. See also CEO 75-127, CEO 80-68, CEO 84-50 (Question 2), and CEO 94-16, all of which prohibit the personal solicitation of school district employees by a school board member.
Accordingly, we find that a prohibited conflict of interest would not be created by your employment with a school uniform company that has been designated the "preferred vendor" by many district schools that require uniforms, but if you are elected to the School Board we caution you against personally soliciting school district staff, as well as school-sponsored organizations like uniform committees, parent-teacher organizations, or school advisory committees, to designate your company as the "preferred vendor" for a school's mandatory uniforms.
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 16, 2010 and RENDERED this 21st day of April, 2010.