CEO 75-141 -- July 9, 1975

UNIVERSITY FACULTY MEMBERS

APPLICABILITY OF THE CODE OF ETHICS

To: Robert D. Bickel, University Attorney, Florida State University, Tallahassee

Prepared by: Bonnie Johnson

SUMMARY:

University faculty members, as employees of the state, are subject to the financial disclosure law, pursuant to s. 112.312(7)(h), F. S. (1974 Supp.), if they engage in consulting, regardless of the amount of compensation received for such consultation. However, the Statement of Financial Disclosure, CE Form 1, requires disclosure only of those sources of income which constitute 10 percent or more of the reporting person's gross income. The authorship of textbooks by a faculty member is not deemed to constitute "consultation" inasmuch as such writing primarily benefits the faculty member himself rather than another person. Similarly, a faculty member's participation in purely academic meetings or conferences would not, in most cases, constitute consultation within the meaning of the Code of Ethics. Where such participation benefits one outside academia and when compensation or reimbursement is derived from an outside source, however, such activity is considered to be consulting. Faculty members are encouraged to write the Ethics Commission for rulings based on particular circumstances when they are unsure as to the applicability of the law.

The acceptance of overload payments from one's university for teaching in off-campus programs does not constitute consultation but is merely an extension of one's principal employment. Likewise, the acceptance of casual employment with another university to teach, for example, during the summer quarter constitutes outside employment rather than consultation. The Code of Ethics contains no provisions relative to a faculty member's receiving compensation for the development of books or educational materials which may be required to be purchased by his own students. The dissemination of scholarly work is of central importance to employment in higher education, and, therefore, such work cannot be construed as the disclosure or use of certain information as prohibited by s. 112.313(6), F. S.

Under the recently revised financial disclosure law, Ch. 75-196, Laws of Florida, which goes into effect on January 1, 1976, only those employees who accept compensation for consultations which compensation in the aggregate exceeds $250 will be subject to financial disclosure.

QUESTIONS:

1. Is Dr. Flory, a faculty member of Florida State University who engages in consultation the compensation for which does not equal or exceed 10 percent of her gross income, a "public officer" within the meaning of that term as found in part III, Ch. 112, F. S. (1974 Supp.), and therefore subject to disclosure requirements applicable to public officers?

2. Does the term "consultation," as used in s. 112.312(7)(h), supra, apply to Dr. Flory who receives a flat fee or percentage of sales from the sale of textbooks authored by her?

3. Does the term "consultation," as used in s. 112.312(7)(h), supra, include participation by Dr. Flory in professional meetings or conferences once or twice per academic year where she receives only reimbursement for expenses or perhaps a small honorarium of $100 to $500 for the presentation of a paper or similar participation in the conference?

4. Does Dr. Flory's acceptance of overload payments from the university for teaching in off- campus continuing education programs constitute "consultation" pursuant to s. 112.312(7)(h), supra?

5. Does Dr. Flory's acceptance of casual employment with another university to teach during the summer quarter, for example, or to teach one course or a part thereof through an extension service or other cooperative education program constitute "consultation" pursuant to s. 112.312(7)(h), supra?

6. Do any provisions of the Code of Ethics relate to Dr. Flory's authorship of textbooks or other educational materials for which she may or may not receive compensation and which she may or may not require to be purchased by her students?

Question 1 is answered in the affirmative.

Included in the definition of the term "public officer" are "[a]ll full time state employees who, in addition to their regular duties, accept compensation for consultations with other state agencies or with other government or private entities." Section 112.312(7)(h), supra. No minimum percentage of gross income is stipulated in this definition; rather, consultation alone qualifies a full-time state employee as a public officer. Should such compensation for consultation equal or exceed 10 percent of the reporting person's gross income, the source of the compensation is required to be disclosed under "Sources of Income" on CE Form 1, the Statement of Financial Disclosure. Whether or not such compensation meets the 10 percent minimum required for disclosure however, if Dr. Flory consults for compensation, she is deemed to be a "public officer" under the current law and is therefore subject to the financial disclosure law.

Question 2 is answered in the negative.

We are of the opinion that, within the context of the Code of Ethics, "consultation" is best construed as the imparting of professional expertise for the purpose of furthering a particular business, private, or professional end of another. This definition, in the context of your inquiry, would include commercial editing, ghost-writing, writing advertisements, etc., where the writer contracts to direct her skills toward the furtherance of another's end. As a writer of academic textbooks, however, Dr. Flory is composing primarily from her own interests and for her own benefit, insofar as academic publication is vital to a university faculty member, and for the benefit of her own discipline and those who would profit intellectually from the general contribution to the field. In such cases, business transactions with a publisher are incidental to the principal objective of personal and academic advancement.

Although this construction may approach distinction without difference, it is necessary for purposes of this statute to cull those instances where expertise is purchased by a party for the purpose of assistance in achieving a goal which is, in whole or large part, removed from the principal aims of the consultant. The statute was not, in our opinion, conceived to embrace those communications of expertise which do not inure to the benefit of the purchaser in a specific, predetermined manner.

We believe that the fees or royalties received by Dr. Flory from the sale of her textbooks do not qualify her as a consultant within the above-stated definition and statutory provision.

Question 3 cannot be answered without reference to a specific fact situation.

Pursuant to the definition of "consultation" set forth in question 2 above, most presentations by university faculty at professional meetings or conferences, like the writing of textbooks, are primarily academic pursuits, aimed at contributing to the scholarship in the field and upgrading one's own academic credentials through such contribution. Academic meetings generally are for the purpose of the sharing of ideas within the discipline and, as such, would further no particular end of another. In these situations, where compensation is derived from one's own university or from a purely academic organization sponsoring the gathering, the presentation of a paper or participation would not appear to constitute consultation as earlier defined.

In certain instances and within particular disciplines, however, such professional meetings go beyond the purely academic. We believe the intention of the act is to require disclosure of those sharings of knowledge which will be to the particular advantage of another agency or private entity. Therefore, when the presentation of a paper or one's participation in a conference is beneficial to one outside academia and when the compensation derived is from an outside source, such presentation or participation would, in our opinion, constitute consulting.

In the absence of a particular factual instance facing Dr. Flory, your question cannot be answered definitively. Should she or any other faculty member be in doubt as to whether any particular circumstance constitutes consultation, we would encourage her to write the commission for an opinion based on those circumstances.

Question 4 is answered in the negative.

We are of the opinion that, where a university faculty member contracts to teach in off-campus programs sponsored by the university's Division of Continuing Education, she is merely agreeing to take on additional responsibilities within her principal employment. In such instances, Dr. Flory's expertise is utilized to further the university's programs, and therefore such instruction would constitute an extension of, rather than a divergence from, her employment. She thus is not contributing towards the furtherance of another's end. Rather, her added duties are directed toward the same general purpose as are her regular duties: The advance of education in general and of the university's overall instructional program. Such additional employment therefore is not deemed to be "consultation" pursuant to s. 112.312(7)(h) and the definition set forth in question 2 above.

Question 5, too, is answered in the negative.

Where a university instructor accepts employment to teach academic courses at another university or through a cooperative education program, such teaching is not aimed toward the furtherance of a particular end of another. Although someone other than the principal employer is being served, the service rendered primarily furthers education in general rather than a specific aim of the employer. The aims of the instructor and the contracting institution or program are, for the most part, the same; the contract therefore represents a cooperative effort rather than a relationship in which one's skills are purchased for the purpose of furthering goals distinct from the instructor's own.

Furthermore, when one contracts to teach at a university or through a cooperative education program, one does not do so as an independent contractor; rather, one contracts to become an employee. Although higher education does embrace a degree of freedom as to manner and detail of instructional work, the university teacher nevertheless is an employee of the university, subject to the control of that employer. She is not an independent contractor as that term generally is defined. Strictly speaking, an employee cannot "consult" with her employer; she can only perform her job. A consultant, on the other hand, is an independent contractor in that she "exercises an independent employment, contracts to do certain work according to [her] own methods, without being subject to the control of [her] employer, except as to the product or result of [her] work." (41 Am. Jur. 2d Independent Contractors s. 1, 1968.) Therefore, where Dr. Flory holds employment with a person, institution, or firm, she cannot simultaneously serve as a consultant to that party. Her acceptance of a teaching position with a school or program other than Florida State University constitutes acceptance of outside employment. She does not become a consultant pursuant to s. 112.312(7)(h), supra.

As to question 6, the question as to the propriety of an instructor's requiring students to purchase textbooks authored by the instructor does not appear to be addressed by the Code of Ethics. Section 112.313(6), F. S. (1974 Supp.), however, conceivably may relate to an instance where a faculty member produces scholarly books or other educational or academic materials for which she receives compensation or benefit of whatever sort. That provision is as follows:

DISCLOSURE OR USE OF CERTAIN INFORMATION. -- No public officer or employee of an agency shall disclose or use information not available to members of the general public gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity.

Assuming that the knowledge required to produce academic books or materials derives at least in part from one's employment experience as a university faculty member, the publication or other dissemination of such books or materials might be construed to constitute disclosure of information prohibited by the above-quoted provision of the new Code of Ethics.

We are of the opinion, however, that this provision could not reasonably be applied to university faculty who produce academic books, articles, studies, etc., as an outgrowth of their university work. The sharing of ideas and knowledge is basic to the philosophy of higher education, and members of university faculties are expected, in addition to their teaching and school service duties, to contribute to the scholarship in their respective fields. Research and publication are, in fact, of substantial importance in considerations of promotion and tenure.

We therefore believe that s. 112.313(6), supra, was not intended to restrict the dissemination of scholarly work by Dr. Flory, inasmuch as the promulgation of such work constitutes a vital element of her employment.

We would like to point out that, under the new financial disclosure law passed by the 1975 Legislature, a public employee who engages in consulting falls within the definition of a "specified employee" who is subject to financial disclosure. Under the new definition, however, one must receive at least $250 in consultation fees in order to become a specified employee. Specifically, the provision lists under the definition of "specified employee" in s. 112.3145 as amended by Ch. 75-196, Laws of Florida:

Any full-time state employee who, in addition to his regular duties, accepts compensation for consultations with other state agencies or with other government or business entities which compensation in the aggregate exceeds $250. (Emphasis supplied.)

The new financial disclosure does not take effect until January 1, 1976, however, and therefore does not affect this year's filing but that of next year.