CEO 80-59 -- September 19, 1980

CONFLICT OF INTEREST

DIRECTOR OF UNIVERSITY DIABETES PROGRAM SERVING ON FLORIDA DIABETES ADVISORY COUNCIL

To: Jay S. Skyler, M.D., Associate Professor of Medicine and Pediatrics, University of Miami Hospitals and Clinics, Miami

Prepared by: Phil Claypool

SUMMARY:

Under s. 112.313(7)(a), F. S., one who serves on the Florida Diabetes Advisory Council would be prohibited from being employed by a business entity which either is subject to the regulation of or is doing business with the council. However, paragraph (b) thereof further provides that the subsection "shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance." Based on this latter provision, no conflict of interest is deemed to be created when one who is employed by a university medical school as director of its diabetes program is appointed to the Florida Diabetes Advisory Council, inasmuch as the law creating the council stipulates that the council membership must include one representative from each medical school.

QUESTION:

Would a prohibited conflict of interest be created were I to serve on the Florida Diabetes Advisory Council while being employed by the University of Miami as director of its diabetes program?

Your question is answered in the negative.

In your letter of inquiry you advise that you are an Associate Professor of Medicine and Pediatrics at the University of Miami and that you are the Program Director of the University of Miami/Southeastern Florida Regional Diabetes Program. You also advise that your name has been proposed as the representative of the university's medical school on the Florida Diabetes Advisory Council. You question whether a prohibited conflict of interest would be created were you to serve on the council, as the university's diabetes program receives funding from the Department of Health and Rehabilitative Services (D.H.R.S.), and the council is responsible for advising D.H.R.S. on diabetes program directions.

Chapter 80-62, Laws of Florida, provides that the council is to be composed of 17 members appointed by the Governor from nominations by the Board of Regents, the Board of Trustees of the University of Miami, and the Secretary of D.H.R.S. More specifically, the council is to be composed of four practicing physicians, seven interested citizens, one representative from each medical school, and three other specified persons. The council is to advise and consult with the deans of the medical schools in which are located diabetes centers and with the Secretary of D.H.R.S. in developing policy and procedures to establish a statewide health care delivery system for diabetes mellitus. In addition, it is provided in ch. 80-62 that D.H.R.S. is to consider the council's plan in disbursing funds appropriated for its diabetes program.

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

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- 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 is an officer or employee . . . 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), F. S.]

Should you serve on the Diabetes Advisory Council, this provision would prohibit you, as a public officer, from being employed by a business entity which either is subject to the regulation of or is doing business with the council.

Although it does not appear that the University of Miami is subject to the regulation of the advisory council or that it is doing business with the council, we do not decide your question on this basis. Rather, we find that even if such a conflict exists, it has been sanctioned by the requirement in ch. 80-62, Laws of Florida, that the council must include a representative from each medical school in which is located a diabetes center. Section 112.313(7)(b) provides:

This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance.

As we have advised previously in CEO 79-2, this provision, in effect, allows a waiver by law of conflicts of interest arising from the interaction between a public officer's professional activities and his public duties in situations in which the necessity for professional expertise is so great as to outweigh potential harm resulting from these conflicting interests. This appears to be the precise reason that the Legislature mandated the appointment of representatives of the various medical schools to the advisory council.

Accordingly, we find that the Code of Ethics does not prohibit you from serving on the Florida Diabetes Advisory Council while being employed by the University of Miami as Director of its diabetes program. However, should a situation arise in which you are called upon to vote as a council member upon a matter which would inure to the special gain of the University of Miami Medical School, as opposed to the gain of all medical schools, you will be required to file a Memorandum of Voting Conflict, CE Form 4, under s. 112.3143, F. S. See CEO 78-96. Alternatively, you may abstain from voting in such situations.