CEO 82-8 -- January 25, 1982
CONFLICT OF INTEREST
SCHOOL BOARD MEMBER EMPLOYED AS BUSINESS REPRESENTATIVE OF LABOR UNION
To: Gilbert Carrillo, Attorney, Miami
Although a school board member is not per se prohibited from employment with a union which represents employees of the school board, a prohibited conflict of interest would exist were that employment to involve the school district or employees of the school district in any manner. In CEO 74-59, the Commission found that a prohibited conflict of interest would exist where a city councilman was employed with a labor union which represented city employees. Subsequently, however, Section 112.313(7)(a) was amended to exclude a per se prohibited conflict of interest based upon employment with an organization which enters into or negotiates a collective bargaining contract with a political subdivision of the State. Nevertheless, a school board member's employment with a labor union would be prohibited if that employment involves the affairs of the school district or the affairs of the district's employees. This conclusion is based upon conflicts between such public and private roles in the collective bargaining process, in assisting employees in disciplinary or grievance proceedings, and in matters involving unfair labor practice charges with the Public Employees Relations Commission.
Would a prohibited conflict of interest be created were a district school board member to be employed as a business representative for a labor union which represents nonprofessional employees of the school board?
Your question is answered in the negative, subject to the restrictions noted below.
In your letter of inquiry you advise that Mr. Perretti presently is employed as a business representative of a labor union, a nonprofit organization representing employees within the public and private sectors with regard to wages, rates of pay, and other terms and conditions of employment. The union, you advise, currently is the certified collective bargaining representative for several bargaining units of employees in the public sector, including the nonprofessional employees of a local School Board. You also advise that as business representative for the union, Mr. Perretti's duties include organizing employees for collective bargaining purposes in the public and private sectors, negotiating collective bargaining agreements with public and private employers, and servicing assigned collective bargaining agreements within the public and private sectors. In particular, you advise that he has participated actively in negotiating for a collective bargaining agreement with the School Board's negotiating committee. You question whether a prohibited conflict of interest would be created were he to be elected to serve on the School Board.
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, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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. (1981).]
This provision prohibits a public officer from having any employment with a business entity which is doing business with his agency. We are of the opinion that a labor union comes within the definition of "business entity" contained in Section 112.312(3), Florida Statutes. In addition, we are of the opinion that by virtue of its representation of School District employees and by virtue of the collective bargaining contract with the School Board, the labor union is doing business with the School Board. See CEO 74-59, in which we found that a prohibited conflict of interest was created where a city councilman was employed with a labor union which represented city employees.
However, since the issuance of that advisory opinion, the Code of Ethics for Public Officers and Employees was amended to provide the exclusion presently contained within Section 112.313(7)(a) for employment with organizations which "enter into or negotiate a collective bargaining contract with . . . any . . . political subdivision of the state[.]" Therefore, although the initial language of the Section would indicate that a School Board member's employment with a union which represents School District employees would be per se prohibited, the exclusionary language indicates that such employment is not per se prohibited. For this reason, we must determine the applicability of the remaining language in the Section. This language prohibits a public officer from having any employment that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. Under this language, we are of the opinion that a School Board member's employment with a labor union would be prohibited if that employment involves the affairs of the School District or the affairs of the District's employees.
Initially, we note that the collective bargaining process is exempt from the State Sunshine Law. Section 447.605, Florida Statutes. We understand this exemption to be a legislative recognition of the sensitivity of collective bargaining matters. Were a School Board member to be employed by a union involved in the bargaining process, he would be faced with a clear conflict of interest when advising the union and employees, given his knowledge of the School Board's confidential bargaining position. In addition, a School Board member would be faced with a conflict of interest if he were in a position to render advice or assistance to School District employees in disciplinary or grievance proceedings which might come before the School Board for final action. Similarly, a conflict of interest would be presented in matters relating to unfair labor practice charges with the Public Employees Relations Commission either by the School Board and against the union or by the union and against the School Board.
Accordingly, although we do not find that a School Board member is per se prohibited from employment with a union which represents employees of the School Board, we find that a prohibited conflict of interest would exist were that employment to involve the School District or employees of the School District in any manner. As a cautionary note, we would direct your attention to Sections 112.313(6) and 112.313(8), Florida Statutes, which prohibit the misuse of public position and the disclosure or use of information not available to the general public. Should the subject of this opinion serve on the School Board, he may wish to take whatever steps may be necessary to avoid even the appearance of a violation of these provisions.