CEO 90-47 -- June 14, 1990

CONFLICT OF INTEREST

FLORIDA SCHOOL FOR THE DEAF AND THE BLIND TRUSTEE

SERVING AS COUNSEL, WITHOUT COMPENSATION, TO THE BOARD

To: Mr. Robert T. Dawson, President, The Florida School for the Deaf and the Blind (St. Augustine)

SUMMARY:

A Trustee of the Florida School for the Deaf and the Blind is not prohibited by Section 112.313(3) and 112.313(7)(a), Florida Statutes, from volunteering his legal services to the Board of Trustees when neither he, nor any firm with which he may be associated, will receive compensation for the representation. As the Trustee will not be compensated for his legal services, he is not doing business with the Board. Nor is he acting to purchase or sell his own services in violation of Section 112.313(3), Florida Statutes. CEO 82-13 is referenced.

QUESTION:

Would a prohibited conflict of interest be created were a member of the Board of Trustees of the Florida School for the Deaf and the Blind to provide legal counsel, without compensation, to the Board?

Under the described circumstances, your question is answered in the negative.

In your letter of inquiry, you advise that a suit has been filed against the Board of Trustees for the Florida School for the Deaf and the Blind. A private law firm is representing the Board in this suit. Mr. Thomas F. Slater, a member of the Board of Trustees, wishes to assist the law firm in its representation of the Board. Presumably, Mr. Slater is not affiliated in any way with the firm representing the Board. Furthermore, neither he nor any firm with which he is associated would receive compensation for his work in representing the Board. He would be reimbursed for any costs or expenses.

Section 112.313(3) and Section 112.313(7)(a), Florida Statutes, provide, respectively:

DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee of his 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 his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he 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. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

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 . . . ; 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(3), Florida Statutes, prohibits the Trustee from acting in his official capacity to purchase his own services for the Board and from acting in his private capacity to sell services to the Board. Since the Trustee is not being compensated for his work, it does not appear that this Section would apply.

Section 112.313(7)(a), Florida Statutes, would prohibit the Trustee from having a contractual relationship with a business entity doing business with the Board. As the Trustee is not being compensated for providing legal services to the Board, he is not doing business with the Board. In CEO 82-13, we determined that a donation of property to a public entity did not constitute "doing business" with that entity, as there was no exchange of consideration, such as money, property, or services. Similarly here, the Trustee is donating his services to the Board without receiving anything in return. We therefore do not consider him to be doing business with the Board despite the fact that the Board may reimburse him for legitimate costs and expenses incurred during his volunteered service. In CEO 89-55, we noted that payment of accommodations and "related expenses" in connection with service provided a nonprofit corporation was not sufficient to constitute a "contractual relationship." See also CEO 81-40 and CEO 83-35. Nor do we feel that payment of expenses incurred in volunteer work for one's agency is sufficient to constitute "doing business" with that agency under Section 112.313(7)(a), Florida Statutes.

We further note that volunteering legal services to the Board would appear to be consistent, rather than inconsistent, with the proper performance of the Trustee's public duties. See, generally, Section 242.331, Florida Statutes.

Accordingly, we find that a member of the Board of Trustees of the Florida School for the Deaf and the Blind is not prohibited from volunteering legal services to the Board when he will not be compensated for those services.