CEO 92-8 -- March 6, 1992
CONFLICT OF INTEREST
MENTAL HEALTH TREATMENT FACILITY ADMINISTRATOR
HIRED AS A CONSULTANT IN AN OUT-OF-STATE CASE
BY COURT APPOINTED MONITOR OF HIS FACILITY
To: Dick Bradley, State Mental Health Treatment Facility Administrator (Arcadia)
A prohibited conflict of interest would be created were a State mental health treatment facility administrator to be hired by a court appointed monitor of his facility as a consultant for a case involving another state's mental health system. A frequently recurring conflict or impediment to duty would be present under Section 112.313(7)(a), Florida Statutes, because the Administrator is responsible for implementing the Consent Decree or assuring that it is implemented and, therefore, for responding to any of the monitor's reports critical of HRS' efforts at implementation. The use of information in his consulting work gained through his official position or developed as part of his responsibilities as a Treatment Facility Administrator and not available to the general public also could constitute a violation of Section 112.313(8), Florida Statutes.
Would a prohibited conflict of interest be created were you, an administrator of a State mental health treatment facility, to be hired by a court appointed monitor of your facility as a consultant for a case involving another state's mental health system ?
Your question is answered in the affirmative.
In your letter of inquiry and your response to questions from staff, you advise that you are the administrator of G. Pierce Wood Memorial Hospital ("GPW"), a State mental health treatment facility, located in Arcadia. You also advise that prior to your employment at GPW, a class action lawsuit was filed in the UnitedStates District Court for the Middle District of Florida on behalf of the patients at GPW alleging, in essence, that the hospital failed to provide adequate treatment and that the community based system of service delivery to persons with mental illness failed to provide an adequate number and variety of community based facilities and services. Because you are presently the administrator of GPW, you have been substituted as a named defendant. Your name appears as such on the copy of the Consent Decree that you provided to us.
The Consent Decree which has been in place since June 1, 1989 and which was signed by the Secretary of the Department of Health and Rehabilitative Services ("HRS"), by you, as Acting Hospital Administrator, and by the counsel for the plaintiff class, requires certain improvements in and at GPW and in HRS funded community based services. You advise that, as typically occurs in these cases, the Federal Court appointed a team of three monitors to monitor the implementation of the Consent Decree. HRS has agreed to pay the costs of the monitoring. You advise that HRS pays a sum of money into the registry of the Court, which, in accordance with the orders of the Court, pays the monitors for their services and reimburses them for their expenses. You advise that these monitors have no formal business relationships with each other; however, they have both independent and interdependent monitoring responsibilities.
You advise that, for the most part, the role of the first monitor has been in providing technical assistance in the design and implementation of a plan to increase federal financial participation with regard to financing services in both community and hospital programs. You advise that the second monitor provides expertise in programs and services, while the third monitor, a civil rights attorney, provides a civil rights perspective to the monitoring. You advise that the monitors review GPW's quarterly reports which address each of the items in the consent decree and discuss them with you and an HRS State Program Office representative. Although the first monitor has briefly visited the hospital on a couple of occasions in order to orient herself to the grounds, services, and "clients" of the hospital, you advise that the first in-depth monitoring visit by her is contemplated to take place in June 1992. During this month and over a one week period, a full-scale audit of GPW's compliance with the consent decree will take place.
You advise that the first monitor files monitoring reports with the Court twice a year; however, you have not had to respond to any of them thus far. You also contend that the relationship between HRS and the monitors has been "very open, honest, and frank." You state that there has been no occasion on which HRS has contemplated contesting the accuracy of the monitors' report, and you do not foresee that this will be an issue in the future. Although you also contend that it would be unlikely that you would be expected to testify at a hearing in which a report is contested, you admit that it would not be accurate to state that this definitely could not occur.
You advise that the first monitor also is involved as a monitor with similar cases in other states. You state that a similar consent decree has been issued in a case involving the State of Arizona, Maricopa County (Phoenix), and the Arizona State Hospital. You advise that a federal court in Arizona has appointed the first monitor to be the court monitor in that case. You advise that initially this monitor is conducting a comprehensive audit of the Arizona State Hospital and the Maricopa County Service delivery system. She has retained ten consultants from outside Arizona at $500 a day plus expenses. You advise that you were retained as one of those consultants.
As a consultant, you advise, you were responsible for doing an in-depth analysis of the services provided for six persons living in the Phoenix metropolitan area. These persons were living in the community rather than at an institution and were receiving services from various community based mental health vendor organizations. You advise that you were required over the course of one week to review their entire clinical records, interview them, interview their case managers, interview other persons providing services to them (for example, residential services, day programming services, etc.), visit their residential settings, visit their day program sites, and complete a written protocol of approximately 30 pages on each of them. You advise that you were required to give your professional opinion about the adequacy, timeliness, appropriateness, and comprehensiveness of services to these six persons. You state that your name was affixed to each document that you prepared indicating that you were reviewer and the author of the report. You also advise that your report along with the reports of the other consultants were filed with the Federal Court.
You are concerned, however, about whether the Code of Ethics for Public Officers and Employees prohibits you from acting as a consultant as described above. You advise that you never entered into a written contract with the first monitor. You also advise that although you have accepted payment of expenses for plane fare, hotel accommodations, and meals, pending receipt of an opinion from us, you have forgone receipt of your fee. You advise that the expenses were paid by the Office of the Monitor, Arnold vs. Sarn, Superior Court of Arizona, Maricopa County, No, C-432355.
The Code of Ethics 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), Florida Statutes.]
This provision prohibits you from having or holding any employment or contractual relationship with any business entity or agency which is doing business with, or is regulated by, your public agency. It also prohibits you from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between your private interests and the performance of your public duties, or which impedes the full and faithful discharge of your duties as a hospital administrator. The term "agency" is defined in the Code of Ethics to mean
any state, regional, county, local or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.
In previous opinions, we have determined the "agency" of an HRS employee by analogy to the department/division/bureau model specified in this definition. For the reasons expressed in CEO 79-8, CEO 81-2, and CEO 86-24, we find that District 8 within which GPW is located and supervised is your "agency" for purposes of the Code of Ethics.
For purposes of determining whether the prohibition of the first part of Section 112.313(7)(a) applies to the consultation that you performed, the term "business entity" means
any corporation, partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state.
We previously have advised that a business entity is doing business with an agency where the parties have entered into a lease, contract, or other type of legal arrangement under which one party would have a cause of action against the other in the event of a default or breach. See, for example, CEO 77-36, CEO 80-87, CEO 82-50, and CEO 86-24. Assuming that the first monitor is a "business entity" for purposes of our analysis, we do not believe that she is "doing business" with your agency because she would not have a cause of action for the non-payment of monitoring fees against either HRS District 8, GPW, or the Department as a whole. We do not equate the monitors' right to petition the Federal Court for payment of fees with a "cause of action." Thus, because the first monitor is neither regulated by your agency nor "doing business" with your agency, you were not prohibited by the first part of Section 112.313(7)(a), Florida Statutes, from becoming a consultant for the first monitor.
However, the second part of Section 112.313(7)(a) prohibits you from having or holding any employment or contractual relationship that will create a continuing or frequently recurring conflict between your private interests and the performance of your public duties as the hospital administrator, or that would impede the full and faithful discharge of your public duties. We find that your consulting work for the first monitor would violate the second part of Section 112.313(7)(a), Florida Statutes. In making this finding, we do not question your personal integrity or imply that you would compromise the performance of your public duties in favor of your private interests. The second part of this section establishes an objective standard which requires an examination of the nature of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct, or whether they coincide to create a situation which tempts dishonor. See Zerwick v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982).
In your position as hospital administrator, you have direct responsibility for the proper functioning of GPW; that is, among your responsibilities are assuring that the physical plant is in good working order, seeing that programs are operating properly, that staff are performing their jobs, that sufficient numbers of trained staff are working, and that patients receive proper treatment, training, food, housing, and otherwise good care. We also find that although, to date, you have not been required to respond to any of the court monitors' reports or to defend your agency's implementation of the consent decree in any court proceeding, because you are responsible either for implementing the decree on behalf of HRS or for assuring that it is implemented, a tension which tempts dishonor exists between your responsibility as an employee of HRS District 8 to respond on behalf of HRS to monitors' reports critical of HRS' efforts at implementation of the decree and any changes that have taken place or are presently occurring at GPW, and your desire to continue to be employed and to be well compensated as a consultant for the first monitor.
In addition, we would caution you that the Code of Ethics also contains the following provision:
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.]
This provision prohibits a public employee from using any information for his personal gain which is gained through his official position or developed as part of his responsibilities as a State employee and which is not available to members of the general public. See CEO 86-6, CEO 87-54 and CEO 87-70. Thus, in performing any consulting work in the future for other than a court monitor of your facility, you may be prohibited from using information gained through your employment, as opposed to experience gained prior to your public employment. If such an occasion should arise, you may wish to seek another opinion from us.
Accordingly, we find that a prohibited conflict of interest is created under Section 112.313(7)(a), Florida Statutes, by your employment as a consultant in another federal case outside the State for a court appointed monitor of the Hospital by which you are employed as the Hospital Administrator.