CEO 02-16 -- July 30, 2002

 

VOTING CONFLICT OF INTEREST

 

CITY COMMISSIONER ALSO AN EMERGENCY ROOM PHYSICIAN AT HOSPITAL LOCATED WITHIN CITY

 

To:       Name withheld at person's request

 

SUMMARY:

 

No voting conflict of interest under Section 112.3143(3), Florida Statutes, is created where a city commissioner who is also an emergency medicine physician and who contracts with a corporation which provides staffing to a local hospital's emergency room votes on matters involving the hospital.  The city commissioner is not an employee of the hospital and the hospital is not a "principal" by whom he is retained.  Although the commissioner may abstain from voting under Section 286.012, Florida Statutes, this statute is permissive, not mandatory.

 

QUESTION:

 

Would a voting conflict of interest be created were you, a city commissioner and emergency medicine physician, to vote on matters involving a hospital where you contract with a corporation providing staffing in the hospital's emergency room?

 

Under the circumstances presented, your question is answered in the negative.

 

From your letter of inquiry and other materials submitted with your request, along with information our staff obtained from the Internet, we are advised that you were elected to the Cocoa Beach City Commission in November 2000.  Shortly after your election, you sought guidance from our staff about the voting conflicts law—Section 112.3143(3), Florida Statutes—and its applicability to you as a board-certified emergency medicine physician who, as an independent contractor, contracts with a corporation providing emergency physician staffing services to hospitals in 28 states including the one located in your community.^[1]  You explain that you are not an employee of the hospital, although you do have medical staff privileges there.  Instead, the hospital is a client of the corporation, and the corporation bills patients and pays its contracted physicians for services they provide in the hospital's emergency department.

 

Further, in your situation, you are actually an employee of your professional association, so the corporation pays your professional association which, in turn, pays you a salary.  You add that you also work as an occupational and emergency physician for a contractor at Kennedy Space Center and as a contractor to an emergency physician group providing services at another hospital in Brevard County.

 

You ask whether you can vote on matters involving the local hospital without violating Section 112.3143(3), Florida Statutes.  Although you have not provided any details about specific votes, you indicate that the hospital is a large landowner and employer within the City and, it appears, is involved in environmental litigation with the City over a dredge and fill permit it needs n order to expand.^[2]

 

Section 112.3143(3) provides:

 

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. 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. [Section 112.3143(3)(a), Florida Statutes (2001).]

 

Section 112.3143(3) prohibits a local public officer from voting in certain situations, including when the matter he is voting on inures to his special private gain or loss or to the special private gain or loss of a principal by whom he is retained.

 

Our analysis focuses on whether the hospital is your "principal," as there is no indication that you have voted on any matter which inured to your special private gain or loss.  In CEO 84-3, this Commission opined that a county commissioner who was also a physician did not have a voting conflict of interest when voting on hospital or health care-related matters, even though he admitted patients at both local hospitals.  We noted in that opinion that although he had a professional interest in those matters, he did not have a contractual relationship with the hospitals or any health care entity such that a voting conflict of interest was created when he voted.  Several other opinions have concluded that being on the medical staff of a hospital does not constitute an employment relationship with the hospital.  See CEO 75-96, CEO 84-101, and CEO 02-2. 

 

In your situation, since you (individually or through your professional association) do not contract with the hospital, it is not your "principal."  Accordingly, there is no statutory basis to conclude that you have a conflict of interest prohibited by Section 112.3143(3) when voting on matters involving the hospital.  Instead, your principal is the corporation which contracts with your professional association for your services in the hospital's emergency room, and there is no indication that any matter voted upon by the City Commission involves or affects the corporation's contract with the hospital.  Thus, Section 112.3143(3), Florida Statutes, is not violated by your votes on matters involving the hospital.

 

In numerous opinions, we have recognized that a public officer may choose to abstain under Section 286.012, Florida Statutes, which allows abstention in situations which "appear" to create conflicts of interest but are not actual conflicts addressed or prohibited in the Code of Ethics.  In CEO 83-49, we opined that a city commissioner whose husband was on the medical staff of a hospital could choose to abstain from matters involving the hospital, even though there was no actual conflict of interest under the voting conflicts law.  In CEO 83-42, we opined that a mayor was not required to abstain from voting on the settlement of a lawsuit between the city and his landlord, as the matter did not inure to his special private gain and the landlord was not his "principal."  Abstention under Section 286.012 is always permissive, however, unlike Section 112.3143(3), which is mandatory.

 

We recognize that there are some who believe that, notwithstanding the absence of a conflict of interest under Section 112.3143(3), you should abstain from voting on all matters involving the hospital.  Every public officer should weigh these types of concerns carefully.  However, inasmuch as the voters elected you to the City Commission knowing that you were an emergency medicine physician associated with the local hospital^[3], it is conceivable that you were elected because of your unique perspective on issues involving the hospital.  Nonetheless, that perspective does not create a voting conflict of interest prohibited by Section 112.3143(3), Florida Statutes.

 

Your question is answered accordingly.

 

ORDERED  by the State of Florida Commission on Ethics meeting in public session on July 25, 2002 and RENDERED this 30th day of July, 2002.

 

 

____________________________

Patrick K. Neal

Chair