CEO 77-57 -- April 21, 1977

CONFLICT OF INTEREST

WIFE OF SCHOOL BOARD MEMBER TEACHER IN SCHOOL SYSTEM

To: John W. Gracy, Member, Hernando County School Board, Brooksville

Prepared by: Bonnie Johnson

SUMMARY:

No provision of the Code of Ethics prohibits one from serving on a school board while his or her spouse is employed as a teacher within the school district. Nor would a voting conflict of interest under s. 112.3143, F. S. 1975, be constituted were the school board member to vote on matters affecting school teachers at large, inasmuch as any gain to his or her spouse would not be of a special nature as required by law. However, a vote affecting the spouse in particular, or a select group of which the spouse is a member, would constitute a conflict requiring disclosure under provisions of s. 112.3143.

QUESTIONS:

1. Would a prohibited conflict of interest be created were I, a school board member whose spouse is employed as a teacher within the school district, to participate in contract negotiations with the teachers' association of which my spouse is a member?

2. Would a voting conflict of interest requiring disclosure be created were I to vote on ratification of the contract between the teachers and the Hernando County School Board?

3. Would a voting conflict of interest requiring disclosure be created were I to vote on matters affecting my wife in her role as a teacher but not involving material benefit to her?

As to question 1, you advise in your letter of inquiry that prior to your election to the Hernando County School Board in the fall of 1976 you were employed as a teacher with Hernando High School. You resigned your teaching job on November 15, 1976, in order to assume your duties with the school board on the following day. Your wife currently teaches at Hernando High School, having first begun teaching there in August of 1973.

Only two subsections of the Code of Ethics for Public Officers and Employees specifically deal with a public officer or employee and his or her spouse. Section 112.313(3), F. S. 1975, prohibits a public officer from acting in his official capacity to do business with a business entity in which he or his spouse is an officer or director or in which they, jointly or severally, hold a material interest. Section 112.313(4) prohibits a public officer or his spouse from accepting any form of compensation designed to influence the officer in the discharge of his public duty. Neither of these subsections addresses the situation you have presented, however. We would point out that s. 112.313(6) would be violated were you ever to corruptly use your position as a school board member "to secure a special privilege, benefit, or exemption" for your wife; but nothing before us indicates anything of this nature.

We would call your attention, however, to s. 112.311(1) of the code, which provides in pertinent part as follows:

It is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law . . . .

Accordingly, a public officer who feels that he cannot be independent and impartial in relation to any official matter should consider recusal. Should you determine that you would be able to act independently and impartially in the subject negotiations with the teachers' association of which your wife is a member, you are not prohibited by the Code of Ethics from participating in such negotiations for reasons explained in your second question.

Question 2 is answered in the negative.

Relative to voting conflicts of interest, the Code of Ethics provides as follows:

Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143, F. S. 1975.]

The mandate of the above-quoted provision is twofold: The voting officer must have a personal, private, or professional interest in the matter and the measure must inure to his special private gain or to that of a principal who retains him. While you may have a personal interest in the contract as a result of your wife's being a teacher whose salary is affected by the contract, and while her salary does indirectly inure to your gain, the question arises as to whether the gain is one of a "special" nature. In our view a contract of this nature, relating to all teachers within the school district, involves no "special" gain, as there is no gain to your wife distinct from that of other teachers. Although a vote on your wife's salary in particular could be said to inure to your special private gain, we see no voting conflict of interest in the situation before us. Accordingly, should you vote on the contract, no disclosure is required.

As to question 3, you advise in your letter of inquiry that, in addition to being faced with voting matters which may benefit your wife materially, such as salary or medical insurance, you also may have occasion to vote on other matters relating to teachers such as grievance procedures or rights to engage in political activity.

As expressed in our response to question 2 above, no voting conflict is created where the issue relates to all teachers within the school system, as there would be no "special gain" to your wife. Should you be called upon to vote on a question relating solely to your wife or to a select group of teachers of which your wife is a member, however, there is the potential for special gain on her part. In such instances a voting conflict of interest would be created, requiring that you file, within 15 days after the vote occurs, a Memorandum of Voting Conflict (CE Form 4, copy enclosed) with the person recording the minutes of the meeting at which the vote occurred, which person is to incorporate such memorandum in the minutes. The filing of such memorandum fulfills your obligation under the law.

We would further point out that should you determine that you are unable to remain independent and impartial on any voting matter, you may abstain from voting, in which case no disclosure is required to be made. In order to reach a complete understanding of the voting conflict situation, s. 112.3143, quoted above, must be read in light of s. 286.012, which provides as follows:

Voting requirement at meetings of governmental bodies. -- No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act, and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is, or appears to be, a possible conflict of interest under the provisions of s. 112.311, s. 112.313, or s. 112.3143. In such cases said member shall comply with the disclosure requirements of s. 112.3143.

Accordingly, an officer may not be prohibited from voting pursuant to s. 112.3143; and, by terms of the above-quoted provision, he must vote unless he has a conflict of interest under either s. 112.311 (quoted in question 1 above); the standards of conduct provisions contained in s. 112.313; or the voting conflicts provision, s. 112.3143. Should he exercise his right to vote in spite of having a conflict, he must disclose such conflict via the filing of Form 4.

Please be further advised that this commission has no authority to interpret s. 116.111, F. S., the antinepotism law.