CEO 85-10 -- January 24, 1985

CONFLICT OF INTEREST

SCHOOL DISTRICT SUPERINTENDENT NOMINATING HIMSELF FOR ADMINISTRATIVE POSITION

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

SUMMARY:

No opinion can be rendered as to whether the Code of Ethics prohibits a school district superintendent who has been defeated for re-election from using his official position to nominate himself to a position as school principal within the district. However, under the circumstances presented the superintendent's actions could have constituted a misuse of public position in violation of Section 112.313(6), Florida Statutes. That prohibition could be violated also if the school board members were to offer the former superintendent a contract, specifically intending to benefit him, while knowing that there is good cause to reject his nomination of himself.

QUESTION 1:

Does the Code of Ethics for Public Officers and Employees prohibit a school district superintendent who has been defeated for re-election from using his official position to nominate himself to a position as school principal within the district?

We have been advised by the members of the Hamilton County School Board that .... recently was defeated in his bid for re-election as Superintendent of the Hamilton County School District. At a special meeting of the School Board called by the Superintendent on his last day in office, the Superintendent nominated himself for the position of principal of an elementary school within the District. That position was held by the person who defeated the incumbent Superintendent and was not vacant until the following day, although the position had been posted for applications. The only applicant for the principal position was the assistant principal, who is fully certified as principal for all grades in the school.

There apparently is a question of whether the former Superintendent is eligible to serve as an elementary school principal, as he is certified only for two of the grades within the school, has not held the position of school principal, but did hold the position of vocational, technical, adult education director for the school system prior to his election as Superintendent. Section 230.33(7), Florida Statutes, requires a superintendent to nominate in writing persons to fill positions within the school district, and Section 230.23(5), Florida Statutes, provides that the school board "may reject for good cause any employee nominated."

There is no provision in the Code of Ethics for Public Officers and Employees which specifically addresses a public official's nominating or appointing himself to a compensated position. However, the Attorney General has rendered several opinions concerning the common law rule that all officers who have appointing power are disqualified for appointment to the offices or positions to which they may appoint. See, for example, AGO 070-46 and AGO 080-17. Therefore, you may wish to contact the Attorney General for his opinion on the application of this common law doctrine.

The Code of Ethics does provide:

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), Florida Statutes (1983).]

For purposes of this prohibition, the word "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), Florida Statutes (1983).]

In previous opinions such as CEO 83-62, CEO 82-82, and CEO 77-129, we have refused to make a final determination in an advisory opinion as to whether an individual has or has not violated Section 112.313(6), Florida Statutes. As we continue to believe that the determination of intent required by Section 112.313(6) is extremely difficult to make while rendering an advisory opinion, we will not depart from our previous policy here.

We have examined carefully the circumstances presented, and we find no circumstances from which we can conclude that the Superintendent's actions could not have constituted a misuse of public position. In other words, the situation you have described could be violative of Section 112.313(6), Florida Statutes. However, we do not conclude that the Superintendent's actions did violate this prohibition, as we feel that an examination of all the circumstances should be made before reaching that conclusion.

QUESTION 2:

Does the Code of Ethics for Public Officers and Employees prohibit the members of the school board from using their official positions to act on the superintendent's recommendation of employment for himself and to offer the position of school principal to him?

In our view the position of the School Board in this matter differs from that of the Superintendent because the Board's discretion in hiring is limited by the requirement that it cannot reject a superintendent's nomination without "good cause." Therefore, even if the Superintendent were not eligible for the position of principal, if the School Board believed him to be eligible or if there were a legitimate doubt as to whether there is good cause to reject his nomination, the Board members would not misuse their public positions in violation of Section 112.313(6), Florida Statutes, if they were to adopt the nomination. However, for example, if the board members specifically intend to benefit the former Superintendent by offering him a contract while knowing that he is not eligible for the position (and therefore that there is good cause to reject the nomination), the Board members' actions could constitute a misuse of position in violation of that section.