CEO 82-79 -- September 20, 1982
CONFLICT OF INTEREST
EMPLOYEE OF DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES CONSULTING WITH PRIVATE ENTITIES
To: Mr. Joseph A. Infantino, Mental Health Program Analyst, Department of Health and Rehabilitative Services, Crawfordville
No prohibited conflict of interest would be created were a Program Analyst in the Manpower Program Office, Department of Health and Rehabilitative Services, to consult with private entities by providing a training program for the therapeutic management of aggressive clients, where the training program is based on information and materials available to the general public. CEO 81-54 is distinguished as involving the offering as a consultant to public and private organizations of a program developed for use by the Department.
Would a prohibited conflict of interest be created were you, a Program Analyst in the Manpower Program Office, Department of Health and Rehabilitative Services, to consult with private entities by providing a training program for the therapeutic management of aggressive clients?
Your question is answered in the negative.
In a previous opinion, CEO 81-54, we advised that the Code of Ethics for Public Officers and Employees would prohibit you from forming a consulting corporation to provide a training program developed by you as an employee of the Department of Health and Rehabilitative Services. In your letter of inquiry you advise that since that opinion was issued you have developed a different training program for the therapeutic management of aggressive clients which would teach private hospitals and outpatient treatment programs how to handle aggressive, mentally-disturbed clients. You wish to do so in partnership with your spouse, who is not employed by the State. You advise that none of your proposed clients would be affiliated with the State, and that the general philosophy and curriculum of the program are readily accessible to the general public through various training methodologies and businesses. You further advised our staff by telephone that nothing you would impart to your clients would be the product of information you obtained while working with the Department of Health and Rehabilitative Services.
In our previous advisory opinion, we found that your proposed consultation would violate Section 112.313(8), Florida Statutes. That provision states:
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), Florida Statutes (1981).]
In that opinion we advised that your proposal "to offer as a consultant to public and private organizations a program developed for use by D.H.R.S." violated this section because at least some of the information you wished to teach had not been made available to the general public.
Now you propose a new program which sells its services only to private entities. This program does not utilize any information which you obtained while working for the Department. Furthermore, all of the content of the program is available to the general public. Under these circumstances, it is our opinion that for you to provide this program as a consultant would not violate Section 112.313(8).
Section 112.313(7)(a), Florida Statutes, prohibits you from having a contractual relationship with a business entity subject to the regulation of your public agency; it also prohibits you from having a contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of your public responsibilities. Further, Section 112.313(3), Florida Statutes, prohibits you from acting as an officer, director, or owner of more than five percent of a corporation which is selling services to your agency. In CEO 81-54 we advised that you would not violate these prohibitions because your proposed business would neither be selling services to your agency, the Mental Health Manpower Development Program, nor be regulated by your agency. Your situation is the same here. Therefore, we find that your proposed consultation would not violate Section 112.313(7)(a) or Section 112.313(3), Florida Statutes.
Accordingly, we find that no prohibited conflict of interest would be created in your proposed consultation with private entities.