CEO 91-25 -- April 19, 1991

CONFLICT OF INTEREST

SCHOOL DISTRICT EMPLOYEES CONDUCTING

SCOTOPIC SCREENING IN SCHOOL DISTRICT

To: Madelyn P. Schere, Assistant Board Attorney, Dade County Public Schools (Miami)

SUMMARY:

A prohibited conflict of interest would be created if two employees of a school district also were employed by an individual who has contracted with the school district to conduct scotopic screening and provide corrective lenses as part of a pilot project in district schools. Section 112.313(7)(a), Florida Statutes, prohibits a public employee from having any employment or contractual relationship with a business entity that is doing business with the employee's agency. Although Section 112.313(12)(e), Florida Statutes, exempts transactions with the sole source of supply within the employee's political subdivision, provided that the appropriate disclosures are made, it does not appear that the individual would be the sole source of reading disability screening and optometric services within the district.

Similarly, a prohibited conflict of interest would be created if the individual were to contract with regions of the school district or to contract with individual schools to screen and provide corrective lenses for scotopic sensitivity and if the subject employees were to do screening work for that individual after school hours and on weekends in connection with the contracts. A prohibited conflict of interest also would be created were the subject employees to contract with regions of the school district or to contract with individual schools to screen students for scotopic sensitivity after school hours and on weekends. Section 112.313(3), Florida Statutes, prohibits a public employee from acting in a private capacity to sell services to the employee's political subdivision, and the employees would not constitute the only source of supply within the school district.

QUESTION 1:

Would a prohibited conflict of interest be created if two employees of a School District were employed by an individual who has contracted with the School District to conduct scotopic screening as part of a pilot project in District schools?

This question is answered in the affirmative.

Through your letter of inquiry and telephone conversations with our staff, we have been advised as follows. Ms. Susan Renick and Ms. Brucie Ball are employed by the Dade County School Board. One of these individuals is a coordinating principal who oversees the exceptional student education programs in Region II of the School District. Region II serves approximately 38 of the 257 schools in the District, and is one of six regions within the District. The other individual is a teacher on special assignment in Region II, serving as a staffing specialist for the placement of handicapped children into exceptional programs. She serves as committee chairman for a multi‑disciplinary team which makes placements in these programs.

Both employees have been certified to screen for Scotopic Sensitivity Syndrome by the Irlen Institute. The Institute promotes the commercial use of tinted lenses and plastic overlays to assist with reading problems caused by scotopic sensitivity, which is related to difficulties with light source, intensity, and color. This does not replace testing for and remediation of learning disabilities, such as dyslexia, because scotopic sensitivity may exist together with such learning difficulties.

During the last school year, the District undertook a pilot project at one school which provided corrective lenses for students with learning disabilities who had scotopic sensitivity. In order to further evaluate the effectiveness of this approach, the District has authorized pilot projects at three schools within Region II during the current school year which seek to identify students with learning disabilities who have scotopic sensitivity and to provide an eye examination and corrective lenses for those students who can be helped in this way. As part of their duties during school hours, the two subject employees have screened students already placed in learning disability programs first by evaluating the children's psychological reports in an effort to identify those who may have visual perceptual disfunctions. Then the employees used Irlen screening techniques to identify those who appear to have scotopic sensitivity. Nineteen of the 47 students screened in this way have been found to be within the scotopic range.

At the next stage in the process, the District proposes to contract with an individual who is not a District employee and who is the only other certified Irlen screener in the County. Under the proposed contract, an optometrist on the staff of this individual would provide each child with a complete eye examination, the lenses necessary to correct for scotopic sensitivity, and frames for a set dollar amount per child. The subject employees have not been trained to prescribe lenses to correct for scotopic sensitivity.

Both of the subject employees have worked in the past for this individual, helping him to screen for scotopic sensitivity outside of the County, and may do so again in the future. Your initial question, then, is whether a prohibited conflict of interest would be created were this individual to contract to provide services in connection with the three pilot projects.

In regard to your question, Section 112.313(7)(a), Florida Statutes, provides:

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.

So long as the subject employees do not have any contractual or employment relationship with this individual during the time he is doing business with the School District, Section 112.313(7)(a) would not be violated. However, we are of the opinion that Section 112.313(7)(a) would be violated if the subject employees were to enter into an employment or contractual relationship with the individual while he is doing business with the School District, the employees' "agency" as defined in Section 112.312(2), Florida Statutes.

You indicate that this individual's business is the only source of scotopic screening within the School District. Section 112.313(12)(e), Florida Statutes, provides an exemption to the prohibition of Section 112.313(7)(a), where:

The business entity involved is the only source of supply within the political subdivision of the officer or employee and there is full disclosure by the officer or employee of his interest in the business entity to the governing body of the political subdivision prior to the purchase, rental, sale, leasing, or other business being transacted.

Although you have advised that the individual has the only business conducting scotopic screening within the area of the School District, we are not persuaded that this exemption would apply. In our view, the services to be procured by the School District in this instance involve screening for reading disabilities and providing optometric services. Based on the record before us, we are of the opinion that the individual is not the only source of supply for these types of services.

Accordingly, we find that a prohibited conflict of interest would be created were the subject employees to work for an individual who is under contract with the School District to screen and provide corrective lenses for scotopic sensitivity as part of the District's current pilot projects.

QUESTION 2:

Would a prohibited conflict of interest be created if the individual were to contract with regions of the School District or to contract with individual schools to screen and provide corrective lenses for scotopic sensitivity and if the subject employees were to do screening work for that individual after school hours and on weekends in connection with the contracts?

This question is also answered in the affirmative.

If the pilot projects are successful, the various regions of the School District and individual schools within the District may wish to contract to have students in learning disability programs screened for scotopic sensitivity and corrective lenses provided, where appropriate. If they contract with the individual who proposes to assist with the pilot projects, you question whether the subject employees may work for him to screen students as directed by the individual, receiving a fee per case, after school hours or on weekends.

Again, Section 112.313(7)(a), Florida Statutes, prohibits the subject employees from having an employment or contractual relationship with a business entity that is doing business with their agency. As we found above, although Section 112.313(12)(e) exempts relationships with sole sources within the School District, we conclude that the sole source exemption does not apply here, given the type of services which would be provided.

Accordingly, we find that a prohibited conflict of interest would be created if the individual were to contract with regions of the School District or to contract with individual schools to screen and provide corrective lenses for scotopic sensitivity and if the subject employees were to do screening work for that individual after school hours and on weekends in connection with the contracts.

QUESTION 3:

Would a prohibited conflict of interest be created were the subject employees to contract with regions of the School District or to contract with individual schools to screen students for scotopic sensitivity after school hours and on weekends?

This question is answered in the affirmative.

If the subject employees were to contract directly with the School District or entities of the District, the following provision of the Code of Ethics would be applicable:

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.

[Section 112.313(3), Florida Statutes.]

This section prohibits the employees from acting in a private capacity to sell any services to the political subdivision they serve or to any agency thereof, thus prohibiting them from contracting to provide screening services with any of the regions or schools within the District. The sole source exemption of Section 112.313(12)(e), Florida Statutes, also applies to Section 112.313(3). However, even if this exemption were applicable to the type of services provided here, as long as there is another individual within the County who is capable of providing the same screening services neither of the subject employees would be the only source of scotopic screening within the District. Therefore, Section 112.313(12)(e) would not exempt contracts between the subject employees and regions or schools within the District.

Accordingly, we find that a prohibited conflict of interest would be created were the subject employees to contract with regions of the School District or to contract with individual schools to screen students for scotopic sensitivity after school hours and on weekends.