CEO 74-15 -- October 14, 1974

CONFLICT OF INTEREST AND FINANCIAL DISCLOSURE

APPLICABILITY TO HOSPITAL PERSONNEL

To: William L. Kimball, Attorney for Manatee Memorial Hospital, Bradenton

Prepared by: Patricia Butler

SUMMARY:

The term "appointed" as used in s. 112.3145(1), F. S., as amended by Ch. 74-177, Laws of Florida, necessarily includes reappointments since the latter is a type of the former. A reappointed board member is therefore subject to the same financial disclosure filing requirements as those officers who are appointed for the first time; i.e., within 30 days from the date of appointment or reappointment. The definition of "public officer," as stated in s. 112.312(7), F. S., does not include hospital administrators, assistant administrators or general counsel. Persons in these positions at Manatee Memorial Hospital are thus not public officers subject to financial disclosure provisions; however, were the administrators to have purchasing agent powers, they would be subject to such provisions pursuant to s. 112.312(7)(j), supra. By virtue of special act of the Florida Legislature in Ch. 10898, 1925, Laws of Florida, and Ch. 25995, 1949, Laws of Florida, the Manatee Memorial Hospital is a department of the county and is thus an agency within the definition of s. 112.312(1), F. S. Therefore, the hospital's purchasing agent is a public officer subject to financial disclosure provisions of Ch. 74-177. Since the hospital is an agency within the definition of s. 112.312(1), supra, all employees of the hospital who have an interest as defined in s. 112.313(3), F. S., must file CE Form 3. However, the general counsel of the hospital is not an employee of that agency but acts as an independent contractor as defined in 41 Am. Jur.2d Independent Contractors s. 1, 1968. As an independent contractor retained part time by the hospital, the general counsel is not subject to the disclosure provisions of Ch. 74-177, supra.

QUESTIONS:

1. When is a reappointed member of a board of hospital trustees required to file a financial disclosure statement?

2. Do the financial disclosure provisions of Ch. 74-177, Laws of Florida, apply to such personnel of Manatee Memorial Hospital as the hospital's administrator, assistant administrator, and general counsel?

3. Do the financial disclosure provisions of Ch. 74-177, Laws of Florida, apply to the Manatee Memorial Hospital purchasing agent?

4. Do the conflict of interest provisions of Ch. 74-177, Laws of Florida, apply to such employees of Manatee Memorial Hospital as the hospital's administrator, assistant administrator, and purchasing agent?

5. Do the conflict of interest provisions of Ch. 74-177, Laws of Florida, apply to the Manatee Memorial Hospital general counsel?

The new financial disclosure law makes no distinction between appointed or reappointed board members. Section 112.3145(1), F. S., as amended by Ch. 74-177, Laws of Florida, provides that "every public officer who is appointed shall file a disclosure statement . . . within thirty (30) days from the date of appointment." Since the term "appointed" necessarily includes the term "reappointed," the latter being a type of the former, it is our opinion that the reappointed officers are subject to the same filing requirements as those officers who are appointed for the first time, i.e., within 30 days from the date of appointment.

Your question 2 is answered in the negative.

Under s. 112.3145(1), F. S., those persons who are to file a financial disclosure statement are candidates and public officers. The definition of a public officer is contained in s. 112.312(7), F. S. The Commission on Ethics is of the opinion that the hospital's administrator, assistant administrator, and general counsel are not public officers within the definition of s. 112.312(7), supra.

The category of persons declared to be public officers for the purpose of this law is explicit and exclusive. Thus, in order to be subject to those portions of this law which apply to public officers, one's position must be expressly stated within the definition of "public officer" as found in s. 112.312(7), supra.

However, if the hospital administrator or the assistant administrator have purchasing powers, they are deemed to be public officers under s. 112.312(7)(j), supra, which includes:

Purchasing agents for any agency or persons having the power normally conferred to purchasing agents by whatever title.

In this situation, these persons would then be required to file a financial disclosure statement and other relevant disclosure forms as required of public officers.

Your question 3 is answered in the affirmative.

As stated above, s. 112.312(7)(j), supra, specifically includes purchasing agents within the definition of public officer. Whether the purchasing agent of the Manatee Memorial Hospital comes within the purview of this definition hinges on whether the hospital is an "agency" within the definition of that term as set forth in s. 112.312(1), F. S.:

(1) "Agency" means any state, county, local or municipal governmental entity, whether executive, judicial, or legislative, and therein any department, division, bureau, commission, authority . . .

The Manatee Memorial Hospital was established by special act of the Florida Legislature in Ch. 10898, 1925, Laws of Florida, and Ch. 25995, 1949, Laws of Florida. As you have advised the Ethics Commission and as stated in s. 7, Ch. 25995, 1949, Laws of Florida, the trustees of the hospital board are appointed by the county commission. The hospital operates on special tax revenues generated at the local level. Section 4, Ch. 25995, states:

. . . the board of county commissioners shall levy, assess and cause to be collected taxes upon all taxable property in the county in such amounts as may be necessary to pay the cost of maintenance, operation and repairs of said hospital and nurses' home and equipment for use therein. The board of county commissioners may allocate to the funds authorized to be raised under the provisions of this act any other public funds not otherwise appropriated or allocated to other uses.

The Board of County Commissioners also controls the expenditure of moneys for this act. Section 7, Ch. 25995, states in part:

The expenditure of all moneys collected or received for the purposes authorized by this act to be accomplished shall be subject to the control and supervision of the board of county commissioners.

As stated in s. 10, Ch. 25995, actions of the hospital trustees are subject to ultimate approval by the county commissioners.

Subject to the approval of the board of county commissioners, the board of trustees may hire or appoint a superintendent, administrator, matron and such other employees and assistants as may be deemed necessary for the efficient management and operation of the hospital.

The law expressly designates the hospital's board of trustees as a county agency. Section 7, Ch. 25995, states, ". . . such board shall be a county agency for the administration and management of the hospital . . . ." (Emphasis supplied.)

From the foregoing provisions of the special act, Ch. 25995, 1949, Laws of Florida, which created Manatee Memorial Hospital, it is our opinion that the hospital is a department of the county and thus is an agency within the definition of s. 112.312(1), F. S. Therefore, the hospital's purchasing agent is a public officer within the definition of s. 112.312(7)(j), F. S. We emphasize that this opinion is based only on the factual situation which you have stated in your request for an official opinion. Therefore, we have not addressed a situation in which other hospital personnel may be public officers by virtue of having powers normally conferred to a purchasing agent. Section 112.312(7)(j), F. S., as amended by Ch. 74 177, supra.

Question 4 is answered in the affirmative.

The language used in the subsections of s. 112.313, F. S., includes public officers and employees of an agency. For example, s. 112.313(2) states:

No public officer or employee of an agency shall own a material interest in any business entity doing business with the agency of which he is an officer or employee. . . . (Emphasis supplied.)

As determined in the previous question, the Manatee Memorial Hospital is an "agency" within the definition of s. 112.312(1), supra. Therefore, all employees of the hospital who have a conflict of interest as defined in s. 112.313(3), F. S., must file a Disclosure of Conflicts of Interest Statement, CE Form 3. It should be noted that this statement need be filed only if the employee has a conflict of interest. If there is no conflict of interest, CE Form 3 need not be completed.

Your question 5 is answered in the negative.

The conflict of interest provisions require an employee of an agency to file CE Form 3, conflict of interest disclosure, if applicable. However, in this case the general counsel is not an employee of the hospital; rather, he acts as an independent contractor. The definition of an independent contractor is generally stated as: "One who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the product or result of his work." 41 Am. Jur.2d Independent Contractors s. 1, 1968. The two elements which distinguish an independent contractor from an employee are: the contractor has an independent business or occupation, and the contractor is not subject to the control of the employer as to manner or detail of performance of the contracted work.

In your case, you are retained by the Manatee Memorial Hospital on a part-time basis and bill the hospital by the hour for your services. Examining your position, one finds that the two distinguishing criteria of an independent contractor are met. You have an independent occupation besides being retained by the hospital, and the hospital does not control the manner of your performance. Being an independent contractor, you are not subject to the disclosure provisions of s. 112.313, supra.