CEO 82-11 -- March 4, 1982
CONFLICT OF INTEREST
JUNIOR COLLEGE FACULTY MEMBER SOLICITING STUDENTS FOR ENVIRONMENTAL AND EDUCATIONAL FIELD TRIPS
To: Mr. Charles T. Dillon, Attorney for St. Petersburg Junior College
No prohibited conflict of interest exists where a Junior College faculty member is an officer of a nonprofit corporation organized for the purpose of holding various environmental and educational field trips, where the corporation pays the expenses of the faculty member in traveling on the trips. The use of College bulletin boards to solicit the participation of students in trips organized by the corporation is more properly a matter of internal policy to be set by the College than a matter governed by the Code of Ethics. As to the publicizing of trips in the faculty member's classes, Sections 112.313(2)(b), 112.313(4), and 112.313(6), Florida Statutes, would not be violated were the faculty member merely to notify students in his classes of the existence and nature of the trips, without any coercion or compulsion on his part. In addition, the instructor should be reluctant to allow participation by a student under circumstances suggesting that the student expects to receive a higher grade than warranted merely because of his participation in trips sponsored by the corporation.
Does a prohibited conflict of interest exist where a junior college faculty member is an officer of a nonprofit corporation organized for the purpose of sponsoring environmental and educational field trips, and where he solicits students' participation in college classrooms and through the use of college bulletin boards?
Your question is answered in the negative, subject to the conditions expressed below.
In your letter of inquiry and in a telephone conversation with our staff, you advise that Dr. Harold Sims is a member of the faculty of St. Petersburg Junior College, in which capacity he teaches courses in natural science. You also advise that he has created and is an officer of a nonprofit corporation organized for the purpose of holding various environmental and educational field trips. Members of the general community, students in the instructor's classes, and other students are invited to become members of the corporation.
Membership fees are charged in an amount sufficient to pay for the expenses of the corporation, including the expenses of the faculty member in traveling with the corporation's members. No salaries are paid; however, the faculty member enjoys the benefit of the field trips without any personal expenses. You also have advised that the corporation has sponsored local trips at a relatively low cost once or twice per month. In addition, the corporation has planned four relatively more expensive trips outside of the state which involve rafting or backpacking.
As to the Junior College's involvement with the corporation, you advise that the College is aware of its activities only to the extent that the field trips in the past were advertised on College bulletin boards. The College has not approved specifically any of the activities of the corporation, and the College neither has been aware of, nor has approved of, the solicitation of students in the classroom. The field trips may indirectly benefit the educational purposes of the College to the extent that they provide firsthand experience of ecological subjects, you advise, and they also may benefit the educational growth and development of the students. However, although the College regularly provides field trips as a part of the curriculum in various courses and has considered using such trips in the subject course, the College has not done so for this course partly because of the instructor's alternative. Finally, you advise that the College prefers that field trips be College- sponsored, and that the College administration has requested the reconsideration of incorporating College-sponsored field trips in this course.
Section 112.313(3), Florida Statutes, would prohibit the instructor from being an officer of a corporation which is selling any goods or services to the Junior College. However, under the circumstances you have presented, it does not appear that the corporation is providing any goods or services to the College. Similarly, we find that the situation does not violate Section 112.313(7), Florida Statutes, which prohibits the instructor from having any employment or contractual relationship with a business entity which is doing business with, or subject to the regulation of, the College. Although the instructor may be deemed to have an employment or contractual relationship with the corporation by virtue of the corporation's payment of his expenses, it appears that the corporation is neither doing business with nor is subject to the regulation of the College.
Section 112.313(7) also prohibits a public employee from having any employment or contractual relationship that will result in a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his duties. However, we find no basis to conclude that the instructor's interest in the nonprofit corporation would conflict with his duties as an instructor or would impede the full and faithful discharge of those duties.
Therefore, we find no provision in the Code of Ethics for Public Officers and Employees which would prohibit the faculty member's relationship with the nonprofit corporation. On the other hand, although that relationship is not prohibited, there are other provisions of the Code of Ethics which would limit the instructor's actions as they might relate to his involvement with the operations of the nonprofit corporation. Although it does not appear that any of these provisions have been violated by the instructor, we believe that a brief explanation of how they might apply under the circumstances you have presented is warranted.
Section 112.313(2)(b), Florida Statutes (1981), provides:
SOLICITATION OR ACCEPTANCE OF GIFTS. -- No public officer or employee of an agency or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service:
That is based upon any understanding that the vote, official action, or judgment of the public officer, employee, or candidate would be influenced thereby.
In addition, Section 112.313(4), Florida Statutes (1981), provides:
UNAUTHORIZED COMPENSATION. -- No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity.
Our particular concern under these provisions is the solicitation of membership or participation in the nonprofit corporation, resulting in some benefit to the instructor, based upon the understanding that a student's grade would be affected. The instructor also should be reluctant to allow participation by a student under circumstances which strongly suggest that the student expects to receive a higher grade than warranted merely because of his participation in trips sponsored by the corporation.
The Code of Ethics also contains the following prohibition:
MISUSE OF PUBLIC POSITION. -- No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), F.S. (1981).]
The term "corruptly" is defined to mean
done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(7), F.S. (1981).]
In this regard, you have referenced the use of College bulletin boards to solicit the participation of students in trips organized by the corporation. In our view, the propriety of the use of College bulletin boards is primarily a matter of internal policy to be set by the College, rather than being a matter governed by the Code of Ethics. As a factual matter, we note that you have advised our staff that the College has no policy regarding the use of bulletin boards by faculty members or the general public, although it has created procedures for their use by students.
The question of the instructor's solicitation of students in College classrooms is a more difficult one, however. Although the instructor stands to benefit through the payment of his personal expenses, this benefit would seem to be offset in part by his donation of time for the benefit of others on the field trips. In addition, it is significant that the trips are educational in nature and are related to the instructor's area of expertise. Therefore, under these circumstances, we are of the opinion that there would be no misuse of the instructor's official position were he merely to notify students in his classes of the existence and nature of the trips, without any coercion or compulsion on his part. In particular, we feel it would be advisable for him to stress that participation by students is strictly voluntary.
Accordingly, so long as the above guidelines are followed, we find that no prohibited conflict of interest exists in the subject faculty member's participation in the nonprofit corporation, use of College bulletin boards, or publicizing of the trips in his classes.