CEO 97-3 -- January 23, 1997
CONFLICT OF INTEREST
STATE BOARD OF COMMUNITY COLLEGES MEMBER TEACHING
CLASSES AT COMMUNITY COLLEGE FOR COMPENSATION
To: Mr. Sydney H. McKenzie III, General Counsel, State Board of Community Colleges (Tallahassee)
A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were an attorney who is a member of the State Board of Community Colleges to teach law classes for a community college and receive compensation. Under the circumstances, the Board member would be employed by an agency that is subject to the regulation of his agency, the Board.
Would a prohibited conflict of interest be created were a member of the State Board of Community Colleges to teach law classes for a Community College for compensation?
Your question is answered in the affirmative.
In your letter of inquiry, you advise that Mr. Randall W. Hanna, an attorney who is a member of the State Board of Community Colleges, has been asked to teach law classes at a Community College, for which service he would receive compensation from the College. You advise that the Department of Education's Division of Community Colleges, which provides administrative support to the State Board of Community Colleges, may on occasion contract for services with the Community College. You question whether the Board member's employment with the College would result in a prohibited conflict of interest.
The Code of Ethics for Public Officers and Employees contains the following limitations:
DOING BUSINESS WITH ONE'S AGENCY.‑‑No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's 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 the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she 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 or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to:
(a) October 1, 1975.
(b) Qualification for elective office.
(c) Appointment to public office.
(d) Beginning public employment.
[Section 112.313(3), Florida Statutes.]
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 or she 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 or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]
EMPLOYEES HOLDING OFFICE.‑‑ No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his or her employer while, at the same time, continuing as an employee of such employer. [Section 112.313(10)(a), Florida Statutes.]
Under these laws, the answer to your question depends largely upon the relationship between the State Board of Community Colleges and the individual Community College at which the Board member would be teaching.
You advise that the State Board of Education has broad, umbrella authority over all levels of education in Florida, including post-secondary education, and provides coordination and uniformity within the system. The State Board of Education sits as the agency head of the Department of Education. The State Board of Community Colleges serves as the director of the Division of Community Colleges, which is a division of the Department of Education.
Community colleges are not part of the Department of Education; rather, each community college district "is an independent, separate, legal entity created for the operation of a community college." Each community college district board of trustees is a "body corporate." Community colleges are constituted as political subdivisions of the state and are operated independently by each district board of trustees, but in accordance with rules of the State Board of Education and the State Board of Community Colleges. The essence of the relationship between the colleges and the State Board of Community Colleges seems to be expressed best in the statute that creates the Board:
There is established a State Board of Community Colleges of the Department of Education with the necessary powers to exercise responsibility for statewide leadership in overseeing and coordinating the individually governed public community colleges. There shall continue to be maximum local autonomy in the governance and operation of individual community colleges. The board shall be subject at all times to the overall supervision of the State Board of Education. [Section 240.301, Florida Statutes.]
Under Section 112.313(3), the subject Board member is prohibited from acting in a private capacity to sell services to his agency. As an instructor at a Community College, it is our understanding, the subject Board member would be considered to be an employee of the College rather than an independent contractor selling his services to the College. Therefore, an instructor at the College while acting in that capacity would be acting in a public capacity as an employee rather than acting in a "private capacity" to sell services to the College. Therefore, we conclude that the Board member would not be prohibited by Section 112.313(3) from teaching at the Community College. In addition, even if an instructor were acting in a private capacity to sell services to the community college, the Board member would selling his services to the college and not to his "agency," the State Board of Community Colleges.
In our view, Section 112.313(10) would prohibit a community college employee from serving as a member of the district board of trustees of that college, and would prohibit the subject Board of Community Colleges member from being an employee of the Division of Community Colleges (which is headed by the Board). However, we conclude that the statute does not prohibit the subject Board of Community Colleges member from being employed by the Community College as an instructor because the State Board of Community Colleges is not the employer of an instructor at a community college--the college would be his or her employer. The power to hire and fire personnel for each entity is completely separate: the State Board of Community Colleges is responsible for appointing and dismissing the executive director of the community college system, who hires and fires Board staff; and a college district board of trustees is empowered to appoint and remove the president of the college, is the contracting agent for the college, and provides for the employment and removal of personnel.
The first part of Section 112.313(7)(a) prohibits a State Board of Community Colleges member from having employment with an agency (or a business entity) that is "doing business with" or "subject to the regulation of" his agency, the State Board. In CEO 90-37, we concluded that this prohibition would not prohibit a Board of Community Colleges member from being a partner in a limited partnership leasing buildings to a community college because the partnership, with which the Board member held a contractual relationship, was doing business with the community college rather than with his agency, the Board. In contrast, the present situation involves proposed employment directly between the Board member and the College, so we are required to determine whether the College is "doing business" with the Board or is "subject to the regulation" of the Board.
We previously have concluded that agreements between governmental entities for the provision of services to not constitute "doing business" for purposes of Section 112.313(7). Therefore, contracts for services between the Board and the Community College would not preclude the subject Board member from being employed by the Community College.
As we noted in CEO 95-24, we have had few instances in which one governmental agency could be considered to be "subject to the regulation" of another agency. In that opinion, we concluded that a city was not "subject to the regulation" of a county planning council, noting that in CEO 76-53 (Question 5), we stated:
In our view, regulation in the context of Section 112.313(7) necessarily involves an agency's power to require another agency to abide by decisions of the former.
In the 1976 opinion, we found that an employee of the Bureau of Finance and Management Services of the Department of Education would be prohibited from selling to district school boards because the Bureau regulated school boards, in the sense that it could recommend the withholding of monthly allocations to require compliance with State regulations. In the 1995 opinion, we found that the city was not "subject to the regulation of" the county planning council because the bulk of the council's duties were advisory only, containing no power to require the city to abide by decisions of the council and no power to sanction or compel action by the city. Further, in CEO 82-39, we concluded that a school district was not subject to the regulation of the Department of Education's Division of Administration where the Division's role was not to regulate, but merely to examine and verify the accuracy of data reported by the school district.
Here, we are of the opinion that the Community College is subject to the regulation of the State Board of Community Colleges. The State Board is responsible for establishing and developing rules and policies "which will ensure the operation and maintenance of a state community college system, as defined in s. 228.041 (1)(b), in a coordinated, efficient, and effective manner." Among other duties, the Board is responsible for reviewing degree programs, ensuring that college rules for admission and employment provide equal access and equal opportunity, specifying by rule procedures for trustees to evaluate college presidents, adopting guidelines for salaries and benefits for college administrators, reviewing and approving all budgets and recommended budget amendments in the state community college system, and adopting rules to be followed when the college trustees select college presidents. On the other hand, the community college trustees are vested with the responsibility to operate their colleges "in accordance with rules of the State Board of Education and State Board of Community Colleges." Therefore, although the community colleges operate with the independence provided by law, their operations still are regulated at the State level by the Board of Community Colleges.
Accordingly, we find that a prohibited conflict of interest would be created were the subject Board of Community Colleges member to teach a course for the Community College for compensation.
ORDERED by the State of Florida Commission on Ethics meeting in public session on January 23, 1997, and RENDERED this 28th day of January, 1997.
Mary Alice Phelan
 See CEO 92-36, in which we concluded that an adjunct teacher at a community college was a public employee governed by the Code of Ethics, rather than an independent contractor who would not be subject to the Code.
 Similarly, in CEO 90-70 we concluded that adding responsibilities and pay to a public employee's position would not constitute "acting in a private capacity."
 See CEO 90-37, where we concluded that Sec. 112.313(3) would not prohibit a State Board of Community Colleges member from being a partner in a limited partnership leasing buildings to a community college, based upon the conclusion that the partnership would not be transacting business with his "agency," the Board.
 The "agency" of a State Board of Community Colleges member, as defined in Sec. 112.312(2), Fla. Stat., is the State Board. See CEO 90-37.