CEO 94-4 -- March 10, 1994

CONFLICT OF INTEREST

EDUCATION PRACTICES COMMISSION EXECUTIVE DIRECTOR

AND DEPARTMENT OF EDUCATION INVESTIGATORS CONSULTING

WITH LOCAL SCHOOL DISTRICTS

To: (Name withheld at the person's request.)

SUMMARY:

A prohibited conflict of interest in violation of Section 112.313(7)(a), Florida Statutes, would be created were the executive director of the state agency responsible for disciplining teachers and school administrators and investigators responsible for investigating complaints against certificated educators for the Department of Education to provide private consulting/training for local school districts.

A continuing or frequently recurring conflict between the executive director's private interests in contracting with the local school districts and her public duties or an impediment to the proper performance of her public duties would exist as a result of her participation in the decisions of the Education Practices Commission (EPC) by providing direction to the members of the EPC, the local school districts' direct interest in decisions of the EPC, the overlap of the proposed training with the public duties of the executive director, and the lack of the appearance of complete independence and impartiality that teachers and administrators of local school districts are entitled to during the EPC's consideration of their cases because of a contract or other business relationship between the executive director and a school district.

The public duties and responsibilities of the complaint investigators for the Office of Professional Practices Services (PPS) also would create a continuing or frequently recurring conflict with their private interests in contracting with school districts to be consultant/trainers, or would create an impediment to the proper performance of their public duties. Their public duties would overlap with their private interests in providing training, and their duty to conduct an impartial and objective investigation or review of investigations could be compromised by partiality towards their private employers as a result of a contract or other business relationship between the investigator and the school district which also is the certificated educator's employer.

QUESTION:

Would a prohibited conflict of interest be created were the Executive Director of the State agency responsible for professional discipline of teachers and school administrators and investigators responsible for investigating complaints against educators for the Department of Education to provide private consulting and training for local school districts?

Your question is answered in the affirmative.

You advise that you have received requests from a least two school districts to conduct training for administrative personnel on how to investigate complaints of both certificated and non-certificated employee misconduct, in order that the districts can fulfill their responsibilities as employers "more competently" when employee disciplinary situations occur and to enable the school boards to avoid liability for not adequately or appropriately responding to allegations of employee misconduct. You advise that the scope of the training, which is intended to teach district administrators the basic investigative skills that they should be familiar with in carrying out their responsibilities, would include the following:

* Fundamentals of administrative law regarding due process;

* Overview of case law pertaining to allegations of misconduct by employees;

* Planning and organizing investigations;

* Interviewing techniques;

* Gathering and assembling evidence;

* Report writing;

* Analysis of fingerprint screening for employment purposes;

* Relevance of investigative findings in a system of progressive discipline;

* Steps in final agency action by employer.

A typical training session would be from one to two days, you advise. You advise further that the terms of the consulting services would be negotiated with either the local school district personnel director or the administrative staff responsible for professional development training for school administrators, with payment for services being made by the respective school boards, you write.

You advise that all private work, including any travel prior to the training engagement, return travel, and time required to prepare for the training, would be performed by you while on annual leave from your public employment and independent of and not in conjunction with your public responsibilities. You also advise that you would use only your own private resources and equipment in carrying out the training. Given these circumstances and the fact that this type of training is not a function or responsibility of staff of either the Education Practices Commission (EPC) or the Office of Professional Practices Services (PPS) in the Department of Education, you do not believe that a prohibited conflict of interest exists which would prevent you from providing this type of private consulting services to individual school districts for compensation.

You advise that the Education Practices Commission is established administratively within the Department of Education pursuant to Section 231.261, Florida Statutes, as the regulatory agency for the education profession. However, it is not subject to the control of the Department, you advise. It consists of 13 members, including five teachers, five administrators, and three lay citizens (two of whom must be school board members) appointed by the State Board of Education from nominations by the Commissioner of Education and subject to Senate confirmation. Its purpose, among other things, is to interpret and apply the standards of professional practice established by the State Board of Education and, upon review of a recommendation of the Division of Administrative Hearings and other relevant material, to render final orders imposing disciplinary sanctions, as authorized by Section 231.28, Florida Statutes, against certificate holders subject to its jurisdiction. Upon an appeal of a denial of issuance of a certificate by the Commissioner of Education, the EPC also is authorized to order issuance of a certificate. A copy of the "unit functional responsibilities," which you attached to your letter of inquiry, also indicates that the "unit" monitors certificate holders placed on probation by the EPC.

As Executive Director of the EPC, you advise, you serve solely as the administrator of the EPC and have no role in recommending action to the EPC regarding discipline of educators' certificates. You advise that the appointed members of the EPC are the only individuals who, sitting as hearing panels, have legal authority to impose sanctions against certificates. However, your position description indicates that among your duties are the following:

-- prepare agendas, set case dockets, secure sites for hearing facilities, and coordinate Commissioners' travel;

-- implement decisions of the Commission by coordinating promulgation of final orders and channeling the orders through the appropriate agencies in order that the teaching certificates of individual respondents are appropriately and judicially processed;

-- maintain liaison with agencies and associations concerned with decisions of the Commission, such as the Legislature, education associations, teacher organizations, the Department of Education, State Board of Education, local school districts, and other state departments of education in order to keep the citizens and appropriate organizations informed of the decisions of the EPC;

-- provide feedback to appropriate education oriented groups by facilitating workshops or services on school law and the role and function of the EPC; and

-- consult with and direct legal counsel, provide direction and training to the Commission members, and provide technical assistance to client groups in order that each individual whose case is filed with the Commission is given full due process of law.

You advise that the staff of the Office of Professional Practices Services (PPS), who report directly to the Commissioner of Education, are responsible for investigating complaints alleging that a certificated individual has engaged in conduct that may be in violation of Section 231.28(1), Florida Statutes. See Section 231.262, Florida Statutes. All district superintendents are required by Section 231.28(5)(b), Florida Statutes, to report the name of any person they believe has committed or is found to have committed any act which would be a ground for revocation or suspension of an educator's certificate. You advise that all certificated educators also are required by Rule 6B-1.006(5)(m), F.A.C., to report any known violation of Section 231.28(a)-(h), Florida Statutes, and any individual also may file such a complaint.

You advise that all complaints or reports initially are referred to the Director of PPS for a determination of legal sufficiency. You advise that a complaint which is determined to be legally sufficient is assigned to one of the investigative staff for investigation. Investigation typically includes interviewing people who have first-hand knowledge which either supports or refutes the allegations, and researching court documents, personnel files, and other sources of information. Once an investigation is completed and an investigative report prepared, the entire professional staff of PPS reviews the report, you advise. You further advise that the investigator's conclusions may be questioned, criticized, or revised by the rest of the PPS staff before it is reviewed by a contract attorney who would represent the Department in subsequent prosecution before the EPC. You advise that the PPS recommendation is submitted to the Commissioner of Education as a "total group recommendation" for purposes of a probable cause determination. You advise that if the Commissioner determines that there is no probable cause, the investigative file is considered closed. However, if he finds probable cause, he signs and files a formal, administrative complaint with the EPC which is simultaneously served by registered mail upon the educator against whom the allegation was made.

In addition to conducting investigations and coordinating and supervising investigations by other staff and reviewing post investigative recommendations for probable cause, the position description of the Program Specialist IV indicates that you are also responsible for the following:

-- assessing reports of alleged improper or unethical behavior against certificated educators for legal sufficiency; advising school superintendents, district and school level administrators, teachers, and lay persons about State administrative procedures; noticing respondents of pending investigations and the nature of the allegations filed against them;

-- providing leadership and coordination for superintendents and district administrative staff for individualized program development, including but not limited to diagnosis strategies, documentation procedures, remediation and construction of individualized professional development plans, legal and procedural requirements for assistance, and progressive disciplinary actions for correction of instructional personnel performance of deficiencies;

-- designing, coordinating, and implementing state-wide programs dealing with the certificated educator competence issue; and

-- coordinating review of local school district reports of alleged incompetent performance evidenced by two successive unsatisfactory evaluations as mandated by Section 231.29, Florida Statutes, evaluating the need for investigation, and coordinating state disciplinary corrective actions.

Finally, you advise that of the approximately 350 reports of alleged misconduct by certificated educators filed with the Commissioner of Education for investigation each year, approximately 200 result in formal complaints being filed with the EPC. Of these, approximately six to ten involve complaints against school administrators. You also advise that the 200 cases represent less than one percent of the estimated 120,000 certificated educators who are employed in positions that require valid certificates.

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 . . . ; 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), Florida Statutes.]

Section 112.313(7)(a), Florida Statutes, prohibits you from having or holding any employment or contractual relationship with any business entity or agency which is doing business with or is regulated by your public agency. It also prohibits you from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between your private interests and the performance of your public duties, or which impedes the full and faithful discharge of your public duties.

As you are the Executive Director of the EPC, your agency for purposes of Section 112.313(7)(a) is the EPC. Likewise, the agency of the Program Specialists IV is the Office of PPS. See Section 112.312(2), Florida Statutes. It is clear that neither the EPC nor the PPS regulate or are doing business with the local school districts. Therefore, we find that the first part of Section 112.313(7)(a), Florida Statutes, would not apply to prohibit you from entering into a contract with the school districts to provide consulting/training services. However, we are of the view that a continuing or frequently recurring conflict between your private interests and the performance of your public duties or an impediment to the full and faithful discharge of your public duties would exist under the second part of Section 112.313(7)(a), which would prohibit you from contracting with the school districts.

As we noted above, one of the functions of the EPC is to interpret and apply the standards of professional practice established by the State Board of Education. These standards apply to both the teachers of the school districts that you would be contracting with as well as to the administrators, with whom you would contract on behalf on their school districts. These same districts also have a direct interest in the decisions of the EPC, which you implement. Their interests may range from supporting or opposing the taking of disciplinary action against a district teacher or administrator to supporting the revocation of the certification of instructional personnel based upon evaluations done by the district and reported to the Department of Education by the district superintendent. Additionally, as Executive Director, you are responsible for providing direction and training to EPC members; for maintaining liaison with agencies, such as school districts concerned with decisions of the EPC; for providing feedback to appropriate education oriented groups by facilitating workshops or services on school law and the role and function of the EPC; and by providing technical assistance to client groups in order that each individual whose case is filed with the EPC is given full due process of law. In this respect, we find that the consulting/training that you propose to do overlaps with your public duties.

In CEO 81-23, we found that Section 112.313(7)(a), Florida Statutes, prohibits public employees, such as the Executive Director of the State Board of Dentistry, who participate in regulatory matters from transacting business with persons who have interests that fall within that regulatory authority, even though the business transacted may not be subject to the regulatory authority. There, we found that the Executive Director's ownership of a dental laboratory would place him in a position of having continuing business relationships with persons who are regulated by his public agency. We found that when the interests of those persons come before the board, he would be presented with a conflict of interest, a situation in which regard for his private interests in the profitability of the laboratory would tend to lead to disregard of his public duty to see that dentists are regulated in the best interests of the public. In addition, we found that the Executive Director's ownership of one or more dental laboratories may result in the appearance of an implicit use of his public position to solicit or to retain business from dentists. Similarly, we find here that although the EPC does not regulate school districts, the districts' interest in the decisions of the EPC, which you may participate in through your giving direction to the members of the EPC, and the interests of those administrators with whom you would contract on behalf of a school district and who are subject to the jurisdiction of the EPC create a continuing conflict of interest. As in CEO 81-23, we also find that your consulting business may also result in the appearance of an implicit use of your position to either solicit business or retain business.

In CEO 82-39, we found a prohibited conflict of interest would be created were an auditor employed by the Department of Education to teach a course for a school district whose programs were audited by her under the Florida Education Finance Program. Although we did not find that the school district was regulated by the Division of Administration, the auditor's agency, we found that the auditor performed an important function in the Department's determination of the amount of funding to be allocated to the District. As we believed that both the Department and the school districts were entitled to complete independence and impartiality during the Department's audits of the districts, we were concerned that this independence would be threatened by partiality towards the auditor's employer. Likewise, the EPC performs an important function with respect to the school districts and the certification and discipline of their teachers and administrators. We believe that the school districts, and their teachers and administrators, are entitled to complete independence and impartiality during the EPC's consideration of their cases, unaffected by a contract or other business relationship between the Executive Director of the EPC and the district. Even though you write that you are solely the administrator of the EPC and have no role in recommending action to the EPC regarding discipline of educator's certificates, we find that your written job description suggests that your duties place you in a position where you could influence EPC decisions.

We also find that your public duties and responsibilities as Program Specialists IV within the Office of PPS in the Department of Education would create a conflict with your private interests as consultant/trainers. We view your roles as investigators, supervisors of investigators, and reviewers of investigations as including the duty to conduct your investigations with impartiality, that is, to interview witnesses and evaluate the material that you gather impartially, without potential conflict with your private interests that might stem from a concern for satisfying or pleasing your private employers, the school districts. In light of your responsibility to question, criticize, and revise all investigative reports prepared by your office, we find that the fact that one of the requests for training came from a school district outside of your "territory" does not eliminate the possibility of conflict. We also find that your public duties as set forth in your position descriptions overlap with your private interests in providing training.

We note that under the second clause of Section 112.313(7)(a) it is not necessary that a public employee actually misuse his or her public position, and this opinion does not make such a finding of misuse or intent to misuse regarding your proposed conduct. The existence of temptation for a public officer or employee to forsake the objective performance of his or her public duty in favor of his or her own private interests is sufficient to create a prohibited conflict; the existence of such a temptation is to be discerned from an examination of the nature and extent of the public employee's duties together with a review of his or her private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which tempts dishonor. See Zerwick v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982). Clearly, in a situation in which a public employee has no public duties or responsibilities in relation to his or her private employment, he or she could not be tempted to compromise the performance of his or her public duty. However, here, your situation is one in which you do have public duties to the school districts with which you wish to privately contract. Thus, a prohibited conflict of interest exists.

Accordingly, we find that a prohibited conflict of interest would be created were you to provide private consulting/training to local school districts.