CEO 01-12 -- June 12, 2001

 

CONFLICT OF INTEREST

 

DEPARTMENT OF CHILDREN AND FAMILY SERVICES FAMILY SERVICES COUNSELOR EMPLOYED WITH CHILD CARE TRAINING PROVIDER

 

To:       Name withheld at person's request (Tallahassee)

 

SUMMARY:

 

No prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where a DCF family services counselor is secondarily employed as a child care trainer with a provider contracting with DCF.  The employee played no role in awarding the contract to the provider, her public/private interests are not conflicting under the second part of the statute, and the situation presents a unity of public/private interest in training child care facilities personnel.  CEO 81-13 and CEO 82-41 are referenced.

 

QUESTION:

 

Does a prohibited conflict of interest exist where a DCF family services counselor also is employed as a child care trainer with a company that trains personnel of child care facilities?

 

Your question is answered in the negative.

 

By your letter of inquiry, a letter and accompanying documents from another Departmental attorney to our staff, a letter from a third Departmental attorney to our staff,[1] and a telephone conversation between one of the Departmental attorneys, our staff, and the supervisor of the person who is the subject of this opinion, we are advised that ... ("employee") serves as a family services counselor for the Department of Children and Family Services[2] ("DCF" or "Department"), in the Department's Suncoast Region,[3] and that she also is privately employed with a company ("provider") that has a contract with the Department to provide State-mandated training to staff/owners/operators of child care/family child care homes and facilities.

Further, regarding the employee's Departmental (public) duties, you advise that the employee assists in the annual licensing and relicensing of child care facilities; that she completes quarterly inspections of child care facilities; that she investigates complaints concerning child care facilities; that she provides technical assistance to current or prospective child care facilities regarding compliance and standards concerning Departmental-related work; that she assists in the paperwork process involved in screening owners and operators of child care facilities; and that she accompanies a county Sheriff Office's child protection services section staff on investigations involving licensed child care facilities and monitors the investigation from a licensing perspective.  In addition, you add that the employee has authority similar to that of other (full-time, career service) licensing counselors; that during the course of a given year, she conducts inspections, conducts complaint investigations, prepares relicensing documents for review by her supervisor and by a family services specialist; that she has no more or no less influence as to a facility's being licensed or relicensed than do other counselors who are not privately employed as she is; and that final decisions as to whether to license or relicense facilities are not within her control.[4]

Additionally, regarding the employee's private job (child care training) duties, we are advised that the employee attends in-service meeting(s) with a training coordinator; that she follows the course outline provided by the Department; that she guides confidential discussions with trainees when talking about individual centers, children, and employees; and that she uses a variety of teaching techniques including, but not limited to, discussion-type training, small group activities, role-playing, and audio-visual aids, in teaching assigned classes.

Further, we are advised that the employee had no responsibility for and played no role in the Department's awarding of the contract to the provider (her secondary employer); that there is no Departmental licensure or certification of the provider or other such training entities; that the employee's expertise to teach classes for her secondary employer derives from her past ownership of child care facilities; that the provider is the only entity in the District/Region that offers such training, and thus if the provider did not handle the teaching, DCF itself would have to directly deliver the training; and that if the employee and other similarly situated DCF personnel did not teach via the provider, there would be a shortage of qualified instructors.

Contained within the Code of Ethics for Public Officers and Employees and relevant to your inquiry is Section 112.313(7)(a), Florida Statutes, which provides:

 

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 or she 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 or her private interests and the performance of his or her public duties, or that would impede the full and faithful discharge of his or her public duties.

 

Materially at issue regarding your inquiry is the second part of the statute, which would prohibit the employee's secondary employment if it would create a continuing or frequently recurring conflict between her private interests and the performance of her public (DCF) duties or if it would impede the full and faithful discharge of her public duties;[5] and which has been judicially interpreted to require an examination of one's public duties and private interests to determine whether the two are separate and distinct or if they coincide to create a situation which "tempts dishonor."  See Zerweck v. State Comm'n on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982).

In the situation you present, we find that no prohibited conflict exists.  While the employee secondarily works for a Departmental provider teaching persons who may work at facilities she inspects for DCF, she has no DCF job duty to examine the persons to ascertain whether they were properly trained; therefore, she is not, in effect, responsible in her public position for critiquing her own secondary work.  In addition, the observations required of the employee in her DCF position (e.g., whether there is direct supervision or proper child-staff ratios) appear to be relatively rudimentary or non-discretionary and, in any event, are subordinate to the Department's licensing decision which is not the employee's to make.[6]  Most importantly, however, under the circumstances presented, it appears that the Department and its employees in their private or secondary capacities have a unity of interest in seeing that persons staffing and operating child care facilities are trained to do so.  See, for example, CEO 81-13, in which we found the existence of a unity of interest where employees of the former Department of Health and Rehabilitative Services (the predecessor agency of DCF) engaged in private employment conducting home studies on refugee children, and CEO 82-41, in which public/private unity was found in a situation where the mental health program coordinator for the Department of Corrections worked privately counseling families of inmates to assist in family integration and resocialization following an inmate's release from prison.  The public/private goal in the instant situation (training of child facilities personnel) would appear to be analogous to the respective public/private goals (placement of refugee children in satisfactory homes and successful resocialization of ex-offenders) present in the cited opinions.

Accordingly, we find that no prohibited conflict of interest exists where the employee works privately teaching child care training courses via secondary employment with the provider.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 7, 2001 and RENDERED this 12th day of June, 2001.

 

 

 

__________________________

Howard Marks

Chair

 


[1]The letters are dated March 21, 2001, January 23, 2001, and January 16, 2001.

[2]Popularly known as the Department of Children and Families.

[3]We are advised that the subject employee is an OPS (Other Personnel Services) employee, and that a job description applicable to her (but designed for and also applicable to similarly situated Career Services employees) identifies the location of the employee's public position as: Department, Children and Families; Division, Assistant Secretary for Operations; Bureau, District VI; Section, Family Safety and Preservation.

[4]By telephone, the supervisor confirmed that the employee has no duty in her DCF position evaluate whether child care facility personnel, including personnel whom she may have personally trained as a teacher for the provider, have been properly trained; and that while the knowledge she imparts as a teacher primarily consists of instruction as to what is required of facilities and caregivers by statutes and administrative rules, her evaluations and recommendations in her DCF position do not directly concern the competency or proficiency of persons whom she may have trained, but, rather, concern things such as her noting whether there is a proper child-staff ratio at a given facility or whether there is proper direct supervision (e.g., visual observation) of children at a given facility.

[5]Although the employee's secondary employment is with a business entity (the provider) that is doing business with her District/Region by virtue of the training contract, the first part of the statute is not at issue, inasmuch as the employee played no DCF role regarding the award of the contract and inasmuch as DCF does not regulate the provider.  See Section 112.316, Florida Statutes, which we have interpreted on numerous occasions to negate conflicts prefaced on the literal language of the statute in situations where a public officer or employee had no public responsibility regarding the award of public business to a company with which the officer or employee works secondarily and where the secondary employment does not otherwise conflict with public duties.  Section 112.316 provides:

CONSTRUCTION.--It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his or her duties to the state or the county, city, or other political subdivision of the state involved.

[6]Also, we note that since the provider is the only entity that can provide the training, there is no issue as to the employee's referring potential trainees to the provider (her secondary employer) instead of to competitors.