CEO 77-132 -- August 24, 1977
CONFLICT OF INTEREST
ADJUNCT PROFESSOR OF STATE UNIVERSITY EMPLOYED BY NEWSPAPER DOING BUSINESS WITH UNIVERSITY
To: Dr. Thomas G. Carpenter, President, University of North Florida, Jacksonville
Prepared by: Phil Claypool
A public employee is prohibited by s. 112.313(7)(a), F. S., from having an employment or contractual relationship with a business entity which is doing business with his agency. Where one serves as adjunct professor with a state university and also is employed by a newspaper which has submitted a bid for the typesetting and printing of that university's student newspaper, the applicability of the above section of the law turns on whether the professor is a public employee for purposes of the Code of Ethics. As the professor is paid from OPS funds, is not a salaried employee, and does not accrue the benefits which other faculty members receive, he is not deemed to be a public employee. Rather, he meets the definition of an independent contractor. See 41 Am. Jur.2d Independent Contractors, s. 1 (1968) and CEO 74-6. Accordingly, no prohibited conflict would be created were the university to award the printing job to the newspaper which employs the subject adjunct professor.
Would a prohibited conflict of interest be created were the University of North Florida to award a contract to print its student newspaper to a local newspaper that employs a person who serves as adjunct professor of the university?
Your question is answered in the negative.
In your letter of inquiry you advise that you are the President of the University of North Florida, which has solicited bids for the typesetting and printing of its campus student newspaper. Among the bids solicited was one from a local newspaper which has employed for 5 years Mr. William Skutt, who also is an adjunct professor with the university. Mr. Skutt's duties with the local newspaper include reporting, writing, editing, and laying out pages, both as a general reporter and on the paper's version of a city desk. As an adjunct professor, Mr. Skutt teaches a newspaper workshop course and serves as the general manager of the student newspaper, in which capacity he advises the students working on the paper and has the authority to veto any unethical, illegal, or immoral items written for the paper. You also advise that an adjunct professor is paid a contract rate as an OPS (other personal service) payroll employee; therefore, an adjunct professor is not a salaried employee and does not accrue benefits such as credits toward tenure, leave, and retirement.
The Code of Ethics for Public Officers and Employees provides in relevant part:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. --(a) 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), F. S. 1975.]
This provision prohibits a public employee from having an employment or contractual relationship with a business entity which is doing business with his agency. As the subject professor clearly will be employed by a business entity which is doing business with the university should the contract be awarded to the local newspaper, the applicability of this section turns on whether he is a public employee for purposes of the Code of Ethics. We are of the opinion that his relationship to the university is that of an independent contractor, rather than that of an employee.
The definition of an independent contractor is generally stated as: "One who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the product or result of his work." 41 Am. Jur.2d Independent Contractors s. 1 (1968). The two elements which distinguish an independent contractor from an employee are: The contractor has an independent business or occupation and the contractor is not subject to the control of the employer as to manner or detail of performance of the contracted work. See CEO 74-6.
Applying these tests, we find that the subject adjunct professor meets the conditions set out above for an independent contractor, especially in light of the fact that he is paid under OPS, is not a salaried employee, and does not accrue the benefits which other faculty members receive. Accordingly, we find that no prohibited conflict of interest would be created were the university to award the contract to print its student newspaper to the newspaper which employs the subject adjunct professor.