CEO 80-35 -- May 21, 1980

CONFLICT OF INTEREST

AREA ASSISTANT SUPERINTENDENT OF SCHOOL DISTRICT AND SCHOOL PRINCIPAL OWNERS OF COMPANY DOING BUSINESS WITH SCHOOLS AND SCHOOL RELATED PERSONS AND ORGANIZATIONS

To: Alvin G. White, Area Assistant Superintendent, Duval County School Board, Jacksonville

Prepared by: Phil Claypool

SUMMARY:

Employees of a school district are prohibited by s. 112.313(3), F. S., from being owners of a company selling any goods to the district school board or to individual schools within the district. However, s. 112.313(12) contains several exemptions from the strict application of this prohibition, including, in subsection (b), one relating to competitive bidding. Unless the requirements of that section are complied with, a prohibited conflict of interest would be created were an athletic supply company owned by a high school principal and assistant superintendent of a school district to sell sporting goods or physical education supplies to the school board or to individual schools within the district.

No provision of the Code of Ethics would prohibit sales by the subject athletic supply company to students or teachers as private individuals, although attention is directed to s. 112.313(8), relating to the use of privileged information, and subsection (6), regarding misuse of public position for private gain. It is noted that both employees hold positions of high responsibility and authority within the school district and therefore should be extremely careful to avoid both the use of position and the appearance of such use in connection with sales of athletic supplies to individual customers who may be students or teachers in schools within the district.

Sales by the company to school-related organizations would not be prohibited by the Code of Ethics so long as the organizations do not receive financial assistance from and are not directly controlled by the school board or individual schools within the district.

QUESTIONS:

1. Would a prohibited conflict of interest be created were an athletic supply company owned by me, an area assistant superintendent of a school district, and by a high school principal within the district to sell sporting goods or physical education supplies to the school board or to individual schools within the district?

2. Would a prohibited conflict of interest be created were an athletic supply company owned by me, an area assistant superintendent of a school district, and by a high school principal within the district to sell athletic supplies to students or teachers as private individuals?

3. Would a prohibited conflict of interest be created were a company owned by me, an area assistant superintendent of a school district, and a high school principal to sell athletic supplies to school-related organizations of parents?

Question 1 is answered in the affirmative, with the possible exception noted later in this opinion.

In your letter of inquiry you advise that you are employed by the Duval County School Board as an area assistant superintendent. You also advise that you own an athletic supply company together with Mr. Jimmie Johnson, who is employed as a senior high school principal within the district. You also advise that each of you is an officer in the corporation. You question whether your company may sell supplies to individual public schools or to the district school board.

The Code of Ethics for Public Officers and Employees provides in relevant part:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his 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 his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he 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. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), F. S.]

This provision prohibits an employee of a school district from selling any goods to the district school board or to individual schools within the district. See CEO 77-125 (question 2), in which we found that this provision would prohibit a director of curriculum for a district school board from owning an athletic supply company doing business with the school board or with individual schools within the district. However, as noted in that opinion, there are several exemptions from the strict application of this prohibition. Of these possible exemptions, the one most likely to be applicable provides that s. 112.313(3) does not apply when:

The business is awarded under a system of sealed, competitive bidding to the lowest or best bidder and:

1. The official or his spouse or child has in no way participated in the determination of the bid specifications or the determination of the lowest or best bidder;

2. The official or his spouse or child has in no way used or attempted to use his influence to persuade the agency or any personnel thereof to enter such a contract other than by the mere submission of the bid; and

3. The official, prior to or at the time of the submission of the bid, has filed a statement with the Department of State, if he is a state officer or employee, or with the Clerk of the Circuit Court of the county in which the agency has its principal office, if he is an officer or employee of a political subdivision, disclosing his, or his spouse's or child's, interest and the nature of the intended business. [Section 112.313(12)(b), F. S.]

Please note that we have promulgated CE form 3A for use in making the disclosure required by subsection (3), above. This form is available at the office of the clerk of the circuit court.

Accordingly, unless the sale is made by sealed, competitive bid and unless the other requirements of s. 112.313(12)(b), above, are complied with, we find that a prohibited conflict of interest would be created were an athletic supply company owned by you and a high school principal to sell sporting goods or physical education supplies to the school board or to individual schools within the school district.

Question 2 is answered in the negative.

We have examined the Code of Ethics for Public Officers and Employees and find no provision which would prohibit this situation. However, the Code of Ethics provides:

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 and 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. [Section 112.313(8), F. S.]

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), F. S.]

We note that both you and the coowner of the athletic supply company hold positions of high responsibility and authority within the school district. For this reason, we would advise that you be extremely careful to avoid both the use of your position and the appearance of using your position in any manner in connection with sales of athletic supplies to individual customers who may be students in public schools or teachers employed by the school district. For example, we suggest that you be particularly cautious about personal solicitations of students and personnel of the school system while on school property.

In your letter of inquiry you pose a third question whether the Code of Ethics would permit your company to sell to customers who represent parental organizations such as P.T.A.'s, athletic booster clubs, or band parents clubs. In response to this question we refer you to CEO's 80-19, 79-60, and 75-196. In each of these opinions we have advised that school district personnel privately may sell goods or services to school-related organizations which do not receive financial assistance from and which are not directly controlled by the school board or individual schools within the district. As your letter of inquiry does not indicate whether these organizations receive such assistance or are controlled by the school board or by individual schools, we merely note that no prohibited conflict of interest would be created were your company to sell to school-related organizations so long as the organizations do not receive financial assistance from and are not directly controlled by the school board or individual schools within the district. Again, however, we caution against misuse of public position in this regard or the appearance of such misuse.