CEO 12-23 -- December 5, 2012

CONFLICT OF INTEREST

TEACHERS AND COACHES SECONDARILY EMPLOYED
TO TUTOR/INSTRUCT STUDENTS AND OFFERING
ADDITIONAL PROGRAMS TO STUDENTS


To:        Sheryl G. Wood, General Counsel, Palm Beach School Board

SUMMARY:

A public school teacher or coach is not prohibited from privately tutoring or providing supplemental instruction to public school students, or from offering private summer programs to students, provided that the students tutored/instructed or offered the programs are not students in/on the teacher's or coach's classes, group instruction, sports tryouts, or sports team, at the time of the tutoring/instruction or offer.1 CEO 04-17, CEO 08-15, and CEO 10-15 are referenced.


QUESTION:

Would a prohibited conflict of interest be created were a public school teacher or coach to privately tutor or provide supplemental instruction to public school students, or to offer private summer programs to students?2


Your question is answered in the negative, provided that none of the students tutored/instructed or offered programs is a student in/on the teacher's or coach's class, group instruction, sports tryouts, or sports team, at the time of the tutoring/instruction or offer.


In your letter of inquiry, you essentially ask, following on our decisions in CEO 04-17 (teachers engaged in private tutoring activities) and CEO 10-15 (teacher offering summer art camp to students in her classes), whether a prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a public school teacher or a public school coach (who may or may not also be a teacher) to hold additional employment with entities other than the School District, or with his or her own business, providing instruction outside of the regular school day, or to offer summer programs to students. More particularly, you state that the School District has a variety of programs which provide additional educational services to students outside of the regular programs the District provides as part of its normal mission; that some of the additional services are run by Supplemental Educational Services ("SES") providers, who are paid with federal funds routed through the Florida Department of Education, and then the District, which pays the providers; that the District, in addition to private entities ("third parties"), is a provider; and that student eligibility for the programs is determined with no teacher input or influence. In addition, your inquiry contemplates scenarios including those in which a teacher would hold employment or a contractual relationship with a provider and would tutor students in his or her regular school classes, but in a different subject than the regular class subject, in which the teacher would hold no secondary employment or contractual relationship but, instead, would have his or her regular district paycheck increased as compensation for the tutoring ("extra District job duties"), in which students tutored as part of a secondary employment are not "students of record" in the teacher's class but regarding which the teacher provides educational support during the regular school day (e.g., intensive reading instruction to a group of students during the school day), and in which the students tutored via secondary employment are not students of record, are in such "educational support groups" during the regular school day, but the tutored subject is different than the regular school day group subject. Additionally, you state that the District employs coaches for various sports; that many of the coaches also are teachers; and that such employees are responsible for determining which students can participate on a given School District sports team, via open tryouts. And, you relate that some of these teacher/coaches, either individually or through an entity under their control, operate camps/programs in the off-season or over the summer, or sponsor sports travel leagues, for which students pay a fee directly to the teacher/coach, or his or her entity, to enroll. Further, your inquiry contemplates scenarios in which the camp/program/league is operated on District school campuses, after regular school hours, and involves the same sport the District pays the person to coach, in which the operation is the same, but conducted off campus, in which the operation is the same, but conducted during the summer, in which the scenario is the same except that the coach works for a business entity he or she does not control, and in which the regular school responsibility sport differs from the camp/program/league sport.

The gravamen of our finding in CEO 04-17 is that a prohibited conflict of interest is created under Section 112.313(7)(a), Florida Statutes,3 when a teacher tutors for compensation in a secondary employment or contractual relationship capacity students in his or her own school classes, reasoning that such a situation would create a temptation for a teacher to be less than objective toward a given student regarding grading and other public capacity duties held by the teacher toward a student currently in his or her public school teacher capacity charge, due to the student's participation or lack thereof in the teacher's compensated secondary endeavor. In CEO 10-15, we followed that same reasoning in finding that a teacher should not offer, or enter into agreements with students/their parents regarding, a summer art camp to students while the students were in her classes (while the students were subject to her grading and other public capacity responsibility or "not yet out for the summer"); however, we did not find that the teacher could not operate the camp at all or sign up students after the school year ended. Implicit in both CEO 04-17 and CEO 10-15 is our recognition that the conflicts found are based on a teacher (public school district employee) having public capacity power or duties regarding a student at the same time that the teacher seeks to do secondary business with the student (or parents) or engages in secondary employment tutoring or instructing the student.

Thus, regarding the situation you present, in its various nuanced possible incarnations, we find that a teacher, a teacher/coach, or a coach can work secondarily tutoring or providing instruction (e.g., extra math tutoring or extra pitching coaching) to students, provided that the students are not in his or her class, in his or her group instruction, in his or her sports tryouts, or on his or her sports team at the time of the instruction; find that he or she can work secondarily in camps/programs/leagues, provided that the students are not in his or her class, in his or her group instruction, in his or her sports tryouts, or on his or her sports team at the time of the camps/programs/leagues; and find that he or she can offer, and can sign students/parents up for, camps/programs/leagues, provided that the offer or sign up occurs during the summer (after the school year ends) or at other times when the student is not in his or her class, in his or her group instruction, in his or her sports tryouts, or on his or her sports team.4

Your inquiry is answered accordingly.5


ORDERED by the State of Florida Commission on Ethics meeting in public session on November 30, 2012 and RENDERED this 5th day of December, 2012.


____________________________________

Susan Horovitz Maurer, Chair


[1]Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).

[2]Your inquiry, which asks several questions, has been consolidated into one question, with no intent on our part to alter the substance of the issues presented.

[3]Section 112.313(7)(a) provides:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.óNo 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.

[4]As to the variant of the scenario in which the teacher, coach, or teacher/coach holds no secondary employment or contractual relationship, but, rather, is paid extra in their public school employment position for extra duties, we find no prohibited conflict under Section 112.313(7)(a), even if the students tutored or instructed are in/on the employee's public school classes, group instruction, sports tryouts, or sports team. An essential element for a finding of conflict under this statute is that a public employee holds some employment or some contractual relationship in addition to his or her public employment. See, for example, CEO 08-15 (health facilities authority executive director providing additional services to authority).

[5]Your inquiry also mentions Section 112.313(6), Florida Statutes, which prohibits corrupt use or attempted use of a public employee's public position. Rarely do we provide advice regarding this statute, inasmuch as it applicability depends on detailed facts typically not susceptible to being provided in the context of a request for an opinion. However, it is obvious that no School District employee should actually use or attempt to use his or her public position or power in a corrupt manner, in furtherance of tutoring/instruction/camps/programs/leagues or otherwise.