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School Board Ethics Training
October 30, 2014
Walter J. Harvey, School Board [email protected]
Luis M. Garcia, Deputy Assistant School Board Attorney
Mindy McNichols, Assistant School Board [email protected] 1
Ethics Training Requirement
Changes made to Florida ethics laws during 2013 legislative session require constitutional officers, including school board members and superintendents to take a minimum of four (4) hours of ethics training annually (Section 112.3142, F.S.). See also School Board Policy 0141.2, Conflict of Interest.
Training must include:
Article II, Section 8 of the Florida Constitution (“Ethics in Government”)
Part III, Chapter 112, F.S. (“Code of Ethics for Public Officers and Employees”)
Public Records Public meetings (Sunshine Law)
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The Florida Commission on Ethics (CE) is authorized to make rules concerning the course content of the ethics portion of training.
CE Rule 34-7.025 states that the required training shall include one or more of the following:
1. Doing business with one’s own agency;
2. Conflicting employment or contractual
relationships;
3. Misuse of position;
4. Disclosure or use of certain information;
5. Gifts and honoraria, including
solicitation and acceptance of gifts, and
unauthorized compensation;
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6. Post-office holding restrictions;
7. Restrictions on the employment of relatives;
8. Voting conflicts when the constitutional office is a member of a collegial body and votes in his or her official capacity;
9. Financial disclosure requirements, including the automatic fine and appeal process;
10. Commission procedures on ethics complaints and referrals; and
11. The importance and process for obtaining advisory opinions rendered by the Commission.
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CE also issued CEO 13-5 on September 18, 2013 providing the following guidance:
any person with knowledge of the required subjects may provide the training
training requirement may be satisfied by (1) completion of CLE or other continuing professional education class if the required subjects are covered; (2) prerecorded program or webinar, or (3) formalized study program involving review of written materials
ultimate responsibility for compliance with the Code of Ethics is with the individual public officer or employee
hourly requirement is not calculated minute for minute; fifty (50) minutes can satisfy one hour of the training requirement (like Florida Bar CLE)
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annual training requirement refers to calendar year from January 1 – December 31 of each year beginning 2013
The training does not have to be recently created but must contain updated information.
[CEO 13-15]
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Article II, Section 8, Florida ConstitutionEthics in Government“A public office is a public trust. The people shall have the right to secure and sustain that trust against abuse.” To assure that right:
(a) All elected constitutional officers and candidates for such offices and, as may be determined by law, other public officers, candidates, and employees shall file full and public disclosure of their financial interests.
(b) All elected public officers and candidates for such offices shall file full and public disclosure of their campaign finances.
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(c) Any public officer or employee who breaches the public trust for private gain and any person or entity inducing such breach shall be liable to the state for all financial benefits obtained by such actions. The manner of recovery and additional damages may be provided by law.
(d) Any public officer or employee who is convicted of a felony involving a breach of public trust shall be subject to forfeiture of rights and privileges under a public retirement system or pension plan in such manner as may be provided by law.
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(e)No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals. Similar restrictions on other public officers and employees may be established by law.
(f) There shall be an independent commission to conduct investigations and make public reports on all complaints concerning breach of public trust by public officers or employees not within the jurisdiction of the judicial qualifications commission.
(g) A code of ethics for all state employees and nonjudicial officers prohibiting conflict between public duty and private interests shall be prescribed by law.
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(h) This section shall not be construed to limit disclosures and prohibitions which may be established by law to preserve the public trust and avoid conflicts between public duties and private interests.
(i)Schedule--On the effective date of this amendment and until changed by law:
(1)Full and public disclosure of financial interests shall mean filing with the secretary of state by July 1 of each year a sworn statement showing net worth and identifying each asset and liability in excess of $1,000 and its value together with one of the following:
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a. A copy of the person's most recent federal income tax return; or
b. A sworn statement which identifies each separate source and amount of income which exceeds $1,000. The forms for such source disclosure and the rules under which they are to be filed shall be prescribed by the independent commission established in subsection (f), and such rules shall include disclosure of secondary sources of income.
(2) Persons holding statewide elective offices shall also file disclosure of their financial interests pursuant to subsection (i)(1).
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(3) The independent commission provided for in subsection (f) shall mean the Florida Commission on Ethics.
History.--Proposed by Initiative Petition filed with the Secretary of State July 29, 1976; adopted 1976; Ams. proposed by Constitution Revision Commission, Revision Nos. 8 and 13, 1998, filed with the Secretary of State May 5, 1998; adopted 1998.
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Part III, Chapter 112, Florida
Statutes
Persons Governed by the Ethic Laws Public officers
Public employees
Local government attorneys
Not Federal employees and officers
Not Article V Florida judges and justices
Not most independent contractors
13
Types of Ethics Laws/Standards/Policies
Financial disclosure requirements Gift bans Gift disclosures Expenditure bans Voting/participation conflicts Anti-nepotism Various “flat out” prohibitions Agency/locality additional standards State/Federal criminal law
14
Anti-nepotism
FS 112.3135
Bans certain hiring
Bans certain advocacy
Does not prohibit two relatives from merely working together; does not apply to a paramour
Specifically exempts school districts, community colleges, and state universities. However, § 1012.23(2) of the K-20 Education Code, prohibits a School Board member from employing or appointing a “relative” [“Relative,” for purposes of this section only, with respect to a public official, means an individual who is related to the public official as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister. § 112.3135, F.S.]
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Doing Business With One’s Public Agency Prohibition
FS 112.313(3) and Policy 0141.2 ; Two Prohibitions:
1) From directly or indirectly purchasing on behalf of Board from
one’s own business or that of a spouse or child, or in which the
person or relative has a material interest
2) From acting in a private capacity to rent, lease, or sell realty,
goods or services to the Board
Restricts rentals, leases, or sales between one’s (or one’s spouse’s
or child’s) business and one’s public agency or political subdivision
Has exemptions, including exemptions listed in FS 112.313(12):
“grandfathers;” advisory board members; emergency purchases
(only to protect health, safety, and welfare); sole source;
transactions of not more than $500)
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Guidelines for Avoidance of Conflict of Interest
Board Policy 0141.2 Intended to avoid conflicts or the appearance of conflict relating to personal
purchases or private contracting Does not apply to purchases made in a private capacity of goods and/or
services at a price and upon terms available to similarly situated members of the general public
A. When entering into a transaction or contractual relationship as described above, Board members will make the following inquiries to the entity with whom they are contracting: 1. Does the business entity have a contractual relationship with the Board for more
than $500? 2. Is the contracting individual a principal or employee of an entity with a
contractual relationship with the Board for more than $500?
B. If an affirmative answer is given to either inquiry above, the Board member will request from the Board Attorney a written opinion indicating whether contracting with the individual or entity would constitute a conflict of interest pursuant to Code of Ethics for Public Officers and Employees, or other State statute or Board rule. The Board Attorney will issue a written opinion or will refer the Board member to the Florida Commission on Ethics.
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Conflicting Employment and Contractual Relationships
FS 112.313(7), Policy 141.3
Mirrors, but is broader than § 112.313(3)
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, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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. . .
Exemptions in FS 112.313(12) Same as those listed for § 112.313(3)
Additional exemption in FS 112.313(15) [ For 501 (c) 3entities, but must abstain]
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FS 112.3125: Dual Public Employment; Policy 0141.3 (Cont’d)
Board members are prohibited from accepting public employment with the State or any of its political subdivisions if the Board member knows, or with the exercise of reasonable care should know, that the position is being offered by the employer for the purpose of gaining influence or other advantage based on the Board member's office or candidacy.
Public employment may only be accepted by a public officer if: A. the position was already in existence or was created by the
employer without the knowledge or anticipation of the public officer's interest in the position;
B. the position was publicly advertised;C. the public officer was subject to the same application and hiring
process as other candidates for the position; andD. the public officer meets or exceeds the required qualifications for
the position.
A person who was employed by the State or any of its political subdivisions before qualifying as a public officer for his/her current term of office or the next available term of office may continue the employment. The person may not, however, accept promotion, advancement, additional compensation, or anything of value that s/he knows, or with the exercise of reasonable care should know, is provided or given as a result of his/her election or position, or that is otherwise inconsistent with the promotion, advancement, additional compensation, or anything of value provided or given an employee who is similarly situated.Nothing in this policy may be interpreted as authorizing employment that is otherwise prohibited by law.
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Employees Holding Office
FS 112.313(10) – prohibits a public official from being an employee of the public entity he or she serves.
Different than Florida Constitution “dual office-holding” restrictions [Simultaneously holding office with two different governmental entities] Article II, Section 5(a), Fla. Const.
Example of violation is a school board member employed as public school teacher in same school district [However, he or she may be employed by the County or other agency]
Example of situation that is not a violation is school board member employed as teacher in another county’s school district
But see FS 112.313(7)(a) – creation of a conflict
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Misuse of Public Position
FS 112.313(6) “No public officer, employee of an agency, or local
government attorney shall corruptly use or attempt to use his or
her official position or any property or resource which may be
within his or her trust, or perform his or her official duties, to
secure a special privilege, benefit, or exemption for himself,
herself, or others.” See also Policy 0141.2
Examples: Influencing hiring decision, fixing a traffic ticket, etc.
Depends on the facts and circumstances of each case
Encompasses bad/evil conduct
Not triggered by policy decisions alone
Requires “corruption”
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Use of Inside Information
FS 112.313(8), Policy 0141.2
Can ultimately encompass public information (i.e., the information may or will later become public knowledge).
“A current or former public officer, employee of an agency, or local government attorney may not disclose or use information not available to members of the general public and gained by reason of his or her official position, except for information relating exclusively to governmental practices, for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity.”
Sometimes an issue in collective bargaining matters.
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Solicitation/Acceptance of Certain Gifts
FS 112.313(2): “No public officer, employee of an agency, local
government attorney, or candidate for nomination or election shall
solicit or accept anything of value to the recipient, including a gift,
loan, reward, promise of future employment, favor, or service, based
upon any understanding that the vote, official action, or judgment of
the public officer, employee, local government attorney, or candidate
would be influenced thereby.” See also Policy 0141.2
Things of Value: Gifts, loans, rewards, promises of future employment
Amounts to bribery (quid-pro-quo) A rare occurrence and even rarer to prove, but is the most newsworthy
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Unauthorized Compensation/Gifts
FS 112.313(4): “No public officer, employee of an agency, or local
government attorney or his or her spouse or minor child shall, at any
time, accept any compensation, payment, or thing of value when such
public officer, employee, or local government attorney knows, or, with
the exercise of reasonable care, should know, that it was given to
influence a vote or other action in which the officer, employee, or local
government attorney was expected to participate in his or her official
capacity.” See also Board Policy 0141.2
Is based on actual or constructive knowledge
A more useful tool than FS 112.313(2)
Somewhat displaced by FS 112.3148 and the $50 K-20 Education Code provision, FS 1001.421*
[Authority of COE to implement is questionable]
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Gift Prohibitions and Disclosures for Reporting Individuals and Procurement Employees (R.I.P.E.s)
FS 112.3148: “A reporting individual or procurement employee is prohibited
from soliciting any gift from a vendor doing business with the reporting
individual’s or procurement employee’s agency, a political committee as defined in
s.106.011,F.S., or a lobbyist who lobbies the reporting individual’s or procurement
employee’s agency, or the partner, firm, employer, or principal of such lobbyist,
where such gift is for the personal benefit of the reporting individual or
procurement employee, another reporting individual or procurement employee, or
any member of the immediate family of a reporting individual or procurement
employee.” (Emphasis added)
Applies to reporting individuals at the state and local level, and to procurement employees at the state level
Prohibits gifts from “lobbyists” and their cohorts valued at more than $100
Requires reporting of certain gifts
Prohibits solicitation of any lobbyist gift
See also K-20 Education Code $50 provision 25
Policy 0141.2
No Board member may solicit any gift, food, or beverage from a person,
vendor, potential vendor, any other entity doing business with the Board,
political committee or committee of continuous existence, or from a lobbyist
who lobbies the Board (or the partner, firm, employer, or principal of the
lobbyist). No Board member or any person on behalf of the Board member
may knowingly accept, directly or indirectly, a gift from a person, vendor,
potential vendor, any other entity doing business with the Board, political
committee or committee of continuous existence, or from a lobbyist who
lobbies the Board (and related individuals and entities, including, but not
limited to, the partner, firm, employer, or principal of the lobbyist), if the
Board member knows or reasonably believes the gift has a value in excess
of $100 - unless the gift is accepted on behalf of and transferred promptly
to a governmental entity or a charitable organization, or is given to the
Board member by a governmental entity for a public purpose. Gifts from
relatives and gifts associated primarily with the recipient's employment or
business are not prohibited. Food or beverage consumed at a single sitting
or event may be accepted.
"Vendor" is defined as a business entity doing business directly with the
Board, such as renting, leasing, or selling realty, goods, or services.
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Reporting Requirement● Quarterly Gift Disclosure, s.112.3148 (8) (a)
Each reporting individual or procurement employee must file a statement with the Commission of Ethics no later than the last day of each calendar quarter for the previous quarter containing a list of gifts, except those from relatives, which he or she believes to be in excess of $100 in value.
● Annual Gift Disclosure
No later than July 1 of each year, each reporting individual or procurement employee shall file a statement listing each gift having a value in excess of $100 received by the reporting individual or procurement employee, either directly or indirectly, from a governmental entity or a direct-support organization specifically authorized by law to support a governmental entity. The statement shall list the name of the person providing the gift, a description of the gift, the date or dates on which the gift was given, and the value of the total gifts given during the calendar year for which the report is made. §112.3148(6)
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Definition of GiftF.S.112.312 (12)
“Gift,” for purposes of ethics in government and financial disclosure required by law, means that which is accepted by a donee or by another on the donee’s behalf, or that which is paid or given to another for or on behalf of a donee, directly, indirectly, or in trust for the donee’s benefit or by any other means, for which equal or greater consideration is not given within 90 days, including:
1. Real property.2. The use of real property.3. Tangible or intangible personal property.4. The use of tangible or intangible personal property.5. A preferential rate or terms on a debt, loan, goods, or services, which rate is below the customary rate and is not either a government rate available to all other similarly situated government employees or officials or a rate which is available to similarly situated members of the public by virtue of occupation, affiliation, age, religion, sex, or national origin.6. Forgiveness of an indebtedness.7. Transportation, other than that provided to a public officer or employee by an agency in relation to officially approved governmental business, lodging, or parking.8. Food or beverage.9. Membership dues.10. Entrance fees, admission fees, or tickets to events, performances, or facilities.11. Plants, flowers, or floral arrangements.12. Services provided by persons pursuant to a professional license or certificate.13. Other personal services for which a fee is normally charged by the person providing the services.14. Any other similar service or thing having an attributable value not already provided for in this section.
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Definition of Gift (Cont’d)
(b) “Gift” does not include:1. Salary, benefits, services, fees, commissions, gifts, or expenses associated primarily with the donee’s employment, business, or service as an officer or director of a corporation or organization.2. Except as provided in s. 112.31485, contributions or expenditures reported pursuant to chapter 106, contributions or expenditures reported pursuant to federal election law, campaign-related personal services provided without compensation by individuals volunteering their time, or any other contribution or expenditure by a political party or affiliated party committee.3. An honorarium or an expense related to an honorarium event paid to a person or the person’s spouse.4. An award, plaque, certificate, or similar personalized item given in recognition of the donee’s public, civic, charitable, or professional service.5. An honorary membership in a service or fraternal organization presented merely as a courtesy by such organization.6. The use of a public facility or public property, made available by a governmental agency, for a public purpose.7. Transportation provided to a public officer or employee by an agency in relation to officially approved governmental business.8. Gifts provided directly or indirectly by a state, regional, or national organization which promotes the exchange of ideas between, or the professional development of, governmental officials or employees, and whose membership is primarily composed of elected or appointed public officials or staff, to members of that organization or officials or staff of a governmental agency that is a member of that organization. 29
Honoraria and Honorarium Event-Related Expenses
FS 112.3149:• A payment of money or anything of value, directly or indirectly, to a
reporting individual or procurement employee, or to any other person on his or her behalf, as consideration for:
• (1) A speech, address, oration, or other oral presentation by the reporting individual or procurement employee, regardless of whether presented in person, recorded, or broadcast over the media. (2) A writing by the reporting individual or procurement employee, other than a book, which has been or is intended to be published.
• An employee will not solicit or accept an honorarium, which is related to the employee’s job duties. "Honorarium" shall be defined consistent with F.S. 112.3149, as a payment of money or anything of value paid to the employee or on his/her behalf as consideration for an oral presentation or writing other than a book. School Board Policy 1201.01, Code of Ethics.
• School Board Policy 0141.2(3): “No Board member may solicit an honorarium related to the member's public office or duties. No Board member may knowingly accept, directly or indirectly, an honorarium from a person, vendor, potential vendor, any other entity doing business with the Board, political committee or committee of continuous existence, or from a lobbyist who lobbies the Board (or from the employer, principal, partner, or firm of the lobbyist). Actual and reasonable transportation, lodging, and food and beverage expenses related to the honorarium event for a Board member and spouse may be accepted.”
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Policy 0141.2 Additional Provisions
A. Board members shall accept no gifts from any individual, firm, or business entity which the Board member has reason to believe is doing business with or seeking to do business with the District. Meals and admissions to events which relate directly to the school system may be accepted.
B. Board members shall not participate in trips paid by a vendor or potential vendor for the purpose of inspecting products or programs useful to the District. Such trips, if deemed necessary, shall always be made at District expense and approved by the Board at a public meeting.
C. Board members, their spouses, or campaign committees shall not solicit any vendor or any employee of this District to make contributions to any political campaign or testimonial.
D. Board members shall not solicit nor accept personal discounts on merchandise or services from individuals, firms, or business entities which the Board member has reason to believe are doing business with or seeking to do business with this District unless those discounts are available to the general public.
E. No Board member may recommend the services of any lawyer or law firm, architect or architectural firm, public relations firm, or any other person or firm, professional or otherwise, to assist in any transaction involving the District, unless the recommendation is made at a public meeting of the Board.
F. Board members are prohibited from acting as an agent or attorney for compensation for anyone in connection with any matter in which the District is interested for two (2) years after his/her Board service terminates.
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Instructional Materials
F.S. 1006.32, Policy 014.2:(1)No Board member shall accept anything of value or any
inducement to, directly or indirectly, introduce, recommend, vote for, or otherwise influence the adoption or purchase of any instructional material.
(2)No Board member shall receive any gift or compensation for promoting the sale or exchange of any schoolbook, map, or chart in any public school, or be an agent for the sale, or the publisher of any school textbook or reference work, or be pecuniarily interested in the introduction of any such textbook.
(3)Publishers and manufacturers of instructional materials, and any representatives, are also prohibited from offering any items of value or any inducement to any School Board official to directly or indirectly introduce, recommend, vote for, or otherwise influence the adoption or purchase of any instructional materials.
(4)A violation is a second degree misdemeanor punishable by up to 60 days imprisonment.
32
Revolving Door/Post Office Holding Restrictions
S 112.313(14)—local government level
Lasts for two years after leaving public position
At state level, prohibits “representation” before the individual’s former “government body” or “agency”
At local level, as to former school board members, prohibits “representation” before any part of the school district
Requires personal representation for compensation—is not vicarious to other members of one’s private firm
Subject to limited grandfathering 33
Voting Conflicts Law/Abstention
FS 112.3143, Policy 0141.2
Applies at state and local levels “No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. . .” §112.3143(3(a), F.S.
Applies to members of government collegial bodies, including advisory bodies [School District Advisory Committees, EESACs]
Requires oral declaration, abstention from voting, and written disclosure via CE Form 8B at local level: “. . . Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer’s interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.” §112.3143(3(a)
Triggered by “special private gain OR loss” to the member personally or to certain others 34
Financial Disclosure (CE Form 6)
Filed by Constitutional officers and other certain individuals
Called “full” disclosure
Requires great detail
Media Interest/Public Record
Internet Resource with published Financial Disclosure forms: http://www.ethics.state.fl.us/
Not filed by many state employees or local government employees
Also, see CE Form 6F and CE Form 6X35
Financial Disclosure (CE Form 1)
Called “limited disclosure” Is the form most often filed by public employees
who file financial disclosure Has percentage threshold versus dollar amount
choices/options Due within 30 days of hiring Due on or before each July 1 thereafter CE Form 1F is due within 60 days of leaving
one’s public position Also, see CE Form 1X
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Disclosure of Specified Business Interests
FS 112.3145(5)
Required of Form 6 and Form 1 filers
Concerns disclosure of “businesses granted a privilege to operate in this state”
Forms 6 and 1 contain a finite list of such businesses
37
Client Disclosure (Quarterly)
FS 112.3145(4)
Applies to Form 6 and Form 1 filers
CE Form 2
Applies to representations by a public officer/employee and to those by members of his or her private firm
Has certain exceptions
38
More Stringent Ethics Standards
Are not preempted by the Code of Ethics or the Commission on Ethics—FS 112.326
May be problematic
May be subject to vested rights, union contract rights, or other restrictions
May be good in particular situations
Do not waive “floor” of state ethics laws
Should be based in reason and logic
39
Florida Commission on Ethics Nine members (appointed) Meets approximately every six weeks Administers Article II, Section 8, Florida
Constitution, and Part III, Chapter 112, Florida Statutes
Handles ethics complaints, issues advisory opinions, and administers financial disclosure laws
Florida Commission on EthicsP.O. Drawer 15709
Tallahassee, Florida 32317-5709(850) 488-7864, telephone(850) 488-3077, facsimile
www.ethics.state.fl.us
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Other School Board Ethics Policies
PersonnelPolicies 1113, 3113, 4113 Conflicting Employment or
Contractual RelationshipPolicies 1129, 3129, 4129 Conflict of InterestPolicies 1210, 1310, 1410 Standards of Ethical ConductPolicies 1210.01, 1310.01, 1410.01 Code of Ethics• Teachers and administrators are prohibited from providing services in
their private capacity to students in their school (CEO 13-21)• Teachers and coaches may privately tutor or provide supplemental
instructions to student and offer private programs in the summer provided that none of the students tutored or offered programs is a student in the teacher’s or coach’s class, group instruction, sports tryout, or sports team at the time of the private tutoring or program. (CEO 12-23, 10-15, 04-17)
Vendors, Contractors 6460 Business Code of Ethics
• Purpose is to protect the integrity of the procurement process• Businesses must agree to comply in order to bid• Covers consultants, contractors, and lobbyists
41
Other School Board Ethics Policies (Cont’d)
Policy 6460: Business Code of Ethics (Cont’d)• Prohibited Conduct
No bidder, proposer, contractor, or subcontractor shall fraudulently deceive or attempt to deceive any School District official with regard to any material fact pertinent to any pending or proposed Board contract. Nor shall an individual, company, or other entity engage in conduct with the purpose or intent of placing any School District employee, official, or agent under personal obligation to the bidder, proposer, contractor or subcontractor by engaging in, but not limited to, the following acts or conduct: providing gifts or monetary compensation to a Board employee or promising gifts, or other compensation in return for a contract, or any other conduct that would place the employee in violation of the prohibitions contained in F.S. 112.313.No contractor or consultant who participates in the development of the scope of work, solicitation documents, contractual instruments, or of the technical specifications on behalf of the School District may participate as a proposer or sub-proposer or perform any work associated with that particular procurement. The Superintendent may waive this prohibition for good cause in writing prior to the award of the contract.
• Conflicts of InterestAll individuals, firms, contractors, and consultants, must take steps to avoid conflicts of interest, for example, but not limited to, those conflicts delineated in Policy 0141.2, Policy 1129, Policy 3129, and Policy 4129. The Superintendent, in consultation with legal counsel, shall determine whether a conflict of interest exists and recommend appropriate action that will resolve the conflict. If it is determined that an actual or apparent conflict of interest exists, the Superintendent shall notify the contractor in writing of this finding and the actions that will be recommended to the Board in order to resolve the conflict of interest. 42
Other School Board Ethics Policies (Cont’d)
LobbyistsPolicy 8150 – Purpose is to maintain integrity of governmental decision making process• Requires registration and annual reporting• Prohibited Activities
Except for a principal’s authorized sales or account representatives, no person shall accept employment as a lobbyist on a basis which makes that person’s compensation contingent in any manner upon the approval, rejection, or modification of any action, non-action or decision of the Board; Board members; Board Committee; District administrative staff; Board administrative assistants, school site administrators, or Board Attorneys. "Contingency fee" means a fee, bonus, commission, or nonmonetary benefit as compensation which is dependent on or in any way contingent on the passage, defeat, or modification of: (1) a resolution, action or decision of the Board; (2) any action, decision or recommendation of the Superintendent or committee; or (3) any action, decision or recommendation of District personnel during the time period of the entire decision-making process regarding such action, decision or recommendation which foreseeably will be heard or reviewed by the Board or staff.
• Advisory BoardsPolicy 9140 requires all advisory board appointees to comply with the Code of Ethics in F.S. Chapter 112 and certify in writing that they will complyPolicy 9145 (21st Century Schools Bond Advisory Committee) prohibits members from having any direct or indirect conflict of interest in a contract with the Board or financial interest in any project funded by the Bond Program. Also subject to Policy 9140’s requirements. 43
Public Records Act, Chapter 119, Florida Statutes
Provides right of access to government records and those of private entities acting on behalf of government. The right is also recognized in Article I, Section 24, Florida Constitution:
Access to public records and meetings. (a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or person acting on their behalf, except with respect to record exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive and judicial branches of government and each agency or department created there under; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution. (b) All meetings of any collegial public body of the executive branch of state government or any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and notice to the public and meetings of the legislature shall be open and noticed as provided in Article III, Section 4(d), except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution.
44
A public record open to inspection and copying includes:
“All documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance in connection with the transaction of official business by any agency.” 119.011 (1), F.S. (emphasis added)
Encompasses all materials made or received in connection with the transaction of official business that are used to perpetuate, communicate or formalize knowledge. 45
Public Records Chapter 119, Florida Statutes
Any documents produced by or for the School Board and any documents received by the Board or individual Board members, or employees.
Any information, except for your social security number, such as your home address, work e-mail address, becomes public record subject to disclosure upon request.
All electronic communications, including e-mail and text messages, are public records which must be available for public inspection and must be retained if used to perpetuate, communicate or formalize knowledge in connection with the business of the Board.
Similarly, all electronic calendars, databases and word processing files stored on agency computers can constitute public records subject to disclosure. However, spoken or bulk mail do not necessarily constitute a public record.
Drafts or “preliminary” documents are public records subject to disclosure unless specifically exempted.
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Handwritten notes by individual members regarding official business of the Board and/or used at a meeting in discussing the member’s position on an issue could be deemed public records.
Handwritten personal notes are probably not public records if they are intended only to jog the board member’s memory, are for personal use and/or are precursors to a future document.
Key test is whether material was made or received in connection with transaction of official business. For example, an email sent by an elected official from personal account using personal computer and blind copied to friends and supporters did not constitute a public record (Butler v. City of Hallandale Beach, 68 So.3d 278 (Fla. 4th DCA 2011))
Determining factor is the nature of the record, not its physical location (City of Clearwater, 863 So.2d 149 (Fla. 2003)) (personal email between government employees on government-owned computers not public records).
Public Records Act applies to advisory boards.
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May apply to a private corporation or entity that provides services or receives funds from governmental body – term “agency” includes private entities “acting on behalf of” any public agency (Section 119.011(2), F.S.) Totality of factors test Delegation test
Agencies’ payment of dues from public funds to private entity subjects private entity’s financial, business and membership records pertaining to public agency to disclosure as public records.
Judiciary not an “agency” subject to Public Records Act but Article I, Section 24 of Constitution does provide right of access except to confidential records determined by rules.
Public Records Act also does not apply to the legislature but there is constitutional right of access in Article I, Section 24(a) which applies to all public bodies; legislature may provide for exemptions by law. Each chamber is authorized to adopt rules relating to records.
Generally, records of the Department of Children & Families are confidential and exempt.
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Charter Schools are subject to Public Records Act and Sunshine law pursuant to Section 1002.33(16)(b), F.S.
Testing materials are generally exempt. (S. 1008.23, F.S.) Emergency, security plans are exempt. (Section 119.071(3), F.S.) Investigative records made or received by public agencies are
open to public inspection usually after the investigation is completed or when probable cause is found.
Student records that contain a student’s personally identifiable information, e.g., name, address, social security number, student I.D. number, etc., are strictly confidential and are not public records [Family Educational Rights and Privacy Act (FERPA)]
Public school system employees: Complaint and investigative material are confidential until preliminary
investigation is concluded or ceases to be active (1012.31 (3)(a), F.S.); anonymous materials cannot be destroyed; personnel files open at all times to (AGO) 87-48) Superintendent, School Board members, principal and designees (1012.31(3)(b),(c), F.S.)
Evaluations are confidential for one (1) year until end of school year immediately following school year in which evaluation was made (1012.31(3)(a)(2), F.S.)
Employee Payroll deduction information
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Social Security numbers exempt (119.071(5)(a)5, F.S.) Health information exempt. Public agencies may impose “reasonable conditions” to
public records request Must respond to requests within a reasonable time Attorneys’ fees and costs can be imposed for failure to
permit access Records must be maintained according to retention
schedules adopted by the State Division of Library and Information Services (119.021(2)(a), F.S.)
Potential Sanctions for Violation:Violators are subject to civil penalties. Knowing or willful violations may lead to removal and/or a first degree misdemeanor punishable by up to one year in prison and fines.
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AGENCY RESPONSES TO PUBLIC RECORDS REQUEST
Basic Principles: All meetings where official action is taken must be
publicly noticed and open to the public. Also required under Article I, Section 24, Florida Constitution except for judiciary and legislature (which has its own provision requiring access).
“Official action” includes any vote, resolution, rule, formal action or discussion. Organizational meetings, briefing sessions, workshops, informal meetings and all other committee meetings in which two or more Board members are present, no matter what they are called, are subject to the Sunshine Law.
Applies to elected and appointed advisory committees and boards even where the recommendations are not binding.
Public Meeting, Sunshine LawChapter 286, Florida Statutes
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Direct–support organizations are subject to Sunshine Law.
Also applies to advisory committees appointed by a single public official.
Disciplinary proceedings are subject to Sunshine Law Quasi-Judicial proceedings are not private Fact-finding or information-gathering committees are
exempt. This exemption does not apply to a board with ultimate decision-making authority. In Finch v. Seminole County School Board, 995 So.2d 1068 (Fla. 5th DCA 2008), exemption did not apply to school board taking fact-finding bus tour.
Meeting must be publicly noticed and posted. Votes must be recorded or counted for each member
present at a meeting. Voting can be by roll call, voice vote (“ayes” or “nays”), and written ballot as long as the ballots are made available to the public. Secret votes are not permitted. Members can abstain from voting only because of declared legal conflict of interest.
Written minutes of the meeting must be taken even if the meeting is recorded. Both the written minutes and the audio or video tape (if recorded) must be made available for public inspection.
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Meetings must be held in a location and facility that is reasonably accessible to the public and does not discriminate based on gender, gender identity or expression, age, race, color, national or ethnic origin, religion, political beliefs, marital status, sexual orientation, social and family background, linguistic preference, disability or economic status.
No two or more members may meet to discuss any matter on which foreseeable action will be taken by the Board without meeting the requirements of the Sunshine Law.
Even at publicly noticed community meetings and regular committee meetings, members may not have private discussions about any matter that may come before the committee.
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The Sunshine Law applies not just to in-person meetings but to telephone conversations, e-mail and social networking communications (Facebook, LinkedIn, etc). Members may not use staff to relay communications to other members about matters that may come before the committee.
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Exemptions: Attorney-Client Meeting (Section 286.011(8), F.S.)
May meet in private with attorney to “discuss pending litigation to which the entity is presently a party before a court or an administrative agency “provided that”:
a) Attorney must advise the entity in a public meeting
b) Subject matter of meeting is “confined to settlement
negotiations or strategy sessions related to litigation
expenditures”
c) Meeting must be recorded by court reporter – no portion
can be off the record; must be transcribed and provided to
Clerk
d) Meeting must be publicly noticed as to time, date and
persons attending
e) Transcript made part of public record upon conclusion of
the litigation
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Purpose is for attorney to receive direction from governmental body
No final decision on litigation matters can be voted on; final settlement must be voted in a public meeting
Cannot convene private attorney-client session for threatened litigation (AGO 04-35, 98-21, 06-03, 9-14)
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Risk Management May have private meetings relating solely to
evaluation of claims or offers of compromise filed with risk management, for tort claims only that entity could be liable for under 768.28, F.S.
Records becomes public when litigation is terminated and all claims related to incident are settled.
Collective Bargaining Collective Bargaining negotiations with other
side are not exempt, but Superintendent may meet with School Board to discuss actual or impending collective bargaining
Does not have to be advertised in advance Matters discussed are not subject to public
disclosure. (AGO 03-09) Disciplinary proceedings are subject to
Sunshine Law Quasi-judicial proceedings are not private
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Potential Criminal Sanctions for Violation:
Violation may include criminal penalties against the violators and may cause the committee action to be set aside.
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