CONFLICT OF INTEREST

EMPLOYEE OF AGENCY FOR PERSONS WITH DISABILITIES OPERATING GROUP HOME FOR DEVELOPMENTALLY DISABLED

To: Name withheld at person's request

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were an Operations and Management Consultant employed as an Assistant Residential Unit Director by the Agency for Persons with Disabilities to operate a foster care or group home facility.

QUESTION:

Would a conflict of interest exist were an Operations and Management Consultant employed by the Agency for Persons with Disabilities to operate a group home in the district or provide services to the developmentally disabled in her own home?

Your question is answered in the affirmative.

Through your letter of inquiry, additional materials supplied to this office, and conversations between our staff and staff of your office, you advise that ... is an Operations and Management Consultant employed by the Agency for Persons with Disabilities ("APD"). She works at the Gulf Coast Center, a facility for the developmentally disabled operated by the APD and housing approximately 338 residents. Gulf Coast is divided into two "residences," Residence A and Residence B. Residence A is overseen by a Unit Director, who reports to the Assistant Center Director. It consists of six residential homes at the Gulf Coast facility and one home in the community, Crestwood. The subject employee, whose class title is Operations and Management Consultant, is the Assistant Residential Unit Director for Residence A, although she is specifically assigned to Crestwood. In this capacity she supervises two Psychological Specialists, three Social Services Counselors, a Behavioral Program Specialist, and six Human Service Worker II's. In addition to her supervisory responsibilities, the subject employee also provides direct care to residents at Crestwood.

The employee is president of a corporation through which she currently operates, out of her home, a foster care facility licensed for two residents.^[1] She is interested in opening a group home facility in the community.

The Code of Ethics provides:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- (a) 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, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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. [Section 112.313(7), Florida Statutes.]

Section 112.313(7) prohibits an employee from having a contractual relationship with any business entity which is subject to the regulation of, or is doing business with, his or her agency. As the APD is a newly created entity,^[2] the question, of what constitutes the "agency of an APD employee" is one of first impression and requires some discussion of the agency's structure.

The APD was established by Chapter 2004-267, Laws of Florida. It essentially took over the developmental disabilities program which was formerly part of the Department of Children and Family Services (DCF), and is "responsible for the provision of all services provided to persons with developmental disabilities pursuant to chapter 393, including the operation of all state institutional programs and the programmatic management of Medicaid waivers established to provide services to persons with developmental disabilities." Section 20.197(2), Florida Statutes. It is housed, for administrative purposes, with the DCF, but is not under its control.

The agency is headed by a Director, who oversees two Deputy Directors -- one for Budget and Planning and one for Operations. Operations contains three subdivisions: Districts (which generally correspond with the DCF districts set out in Section 20.19, Florida Statutes), Program Initiatives and Quality Assurance, and Residential and Clinical Support. The Gulf Coast Center is located in District 8, but, you write, is not under the supervision of the District. Rather, the Center Administrator reports to the Chief of Residential and Clinical Support, who in turn reports to the Deputy Director of Operations. The Center is licensed and inspected by the Agency for Health Care Administration.

Section 112.312(2), Florida Statutes defines "agency" as

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. [E.S.]

In CEO 03-10, we addressed the issue of whether entities assigned for administrative purposes to the Department of Management Services but not under its jurisdiction or control constituted separate "agencies" from the Department for purposes of the post-employment restrictions contained in Section 112.313(9), Florida Statutes. We noted that "since the Supreme Court has recognized that independent agencies can be created and assigned to another agency for administrative purposes, we conclude that the so-called 'dotted line' agencies that are housed within DMS but are not subject to its supervision or control would not be considered your former agency for purposes of Section 112.313(9)(a)4, Florida Statutes." In keeping with that analysis, we conclude that although the APD is housed within the Department of Children and Families, the DCF would not be considered the employee's agency for purposes of Section 112.313(7).

The question then becomes whether the subject employee's "agency" for purposes of Section 112.313(7) is the entire APD or some smaller subset of the entity. In a number of opinions involving the DCF or its predecessor agency, the Department of Health and Rehabilitative Services (HRS), we observed that the department did not conform to the "department, division, bureau" structure contemplated in Section 112.312(2), and engaged in a comparison of HRS positions with those enumerated in the Code of Ethics to determine the applicability of its provisions. See, for example, CEO 78-50, CEO 79-48, and CEO 87-20. Such an analysis is not available to us here, though, because although the APD follows an organizational structure similar to that of the DCF, unlike the DCF the structure is not statutorily prescribed. In the absence of any formalized structural separation, we have found that differing functional units in an agency are still part of that same agency. See, CEO 76-15. Thus, we find here that for purposes of Section 112.313(7), the "agency" of an employee of the APD is the entire APD. Because her company is licensed and inspected by the APD, the subject employee has contractual relationship with a business entity regulated^[3] by her agency.

We now turn to the question of whether any exception would operate to negate the conflict. In certain circumstances we have advised that outside employment which causes an apparent conflict under the first part of the statute was permissible where the employee's public responsibilities had no involvement with the private entity. In doing so, we applied Section 112.316, Florida Statutes, which 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 duties to the state or the county city, or other political subdivision of the state involved.

We have applied this provision in situations where the employee was not involved in any way with the contracting or regulatory process between her agency and her private employer and was not in a position to make or influence referrals of clients to her private employer. For example, in CEO 88-66 we said the statute would not be violated by a Department of Health and Rehabilitative Services district intake counselor supervisor who wished to enter into a contract with the Department to provide emergency shelter to dependent children, noting that the supervisor would not be in a position to influence the licensing or inspection of his proposed family shelter, would have no role in the awarding or monitoring of the contract with the Department, and would have no ability to dictate, select, or influence placement in a specific shelter. Similarly, in CEO 89-62, we found no prohibited conflict of interest would be created were a detention care worker supervisor with a district of the Department of Health and Rehabilitative Services also to be employed as a direct services worker with a residential youth program funded in part by a grant from the Department, where the supervisor was not involved in licensure or registration of the private facility, was not involved in any way with the contract between the facility and the Department, and was is not in a position to make or influence referrals of clients to her private employer.

The subject employee's corporation is certified by the District as a Medicaid Waiver Services Provider^[4] and has entered into a "Medicaid Waiver Services Agreement" with the APD. You advise that she has no agency responsibilities with respect to those matters. You state that private foster care and group home facilities in District 8 are licensed by the District, that the facilities are monitored monthly for compliance with licensing requirements, and that they receive periodic reviews for the quality of medical services, all of which is handled by District staff. You relate that the subject employee has no responsibilities with respect to the licensing or monitoring of her foster home; nor would she have any involvement in the licensing or monitoring of her proposed group home.

It cannot be said, however, that the employee is completely unconnected to the referral process. Referrals to private facilities such as the employee's foster care facility and contemplated group home are made through a team approach involving the resident, family members, a Community Inclusion Specialist, "Interdisciplinary Team" members, Medicaid Waiver Support Coordinator, District 8 Developmental Disabilities Placement Coordinator, and a Medical Case Manager. You advise that the subject employee would have no supervisory responsibility over the Community Inclusion Specialist, Medicaid Waiver Support Coordinator, District 8 Developmental Disabilities Placement Coordinator, or Medical Case Manager, but she may supervise one or more members of a given "Interdisciplinary Team."

As previously related, the subject employee supervises two Psychological Specialists and three Social Services Counselors. You advise that the "Interdisciplinary Team" which participates in the referral process typically includes a Psychological Specialist and a Social Services Counselor. Thus, there may be occasions where the subject employee supervises one or more persons in a position to influence a referral to her private business. While it may well be that the potential for an actual conflict is limited because of the number of individuals participating in the team approach taken to making referrals is so large that having influence over one or even two would not be meaningful, the question here is not whether there is a conflict —that has already been established by our finding that the subject employee has a contractual relationship with a business entity regulated by her agency–the question now under consideration is whether the limited exception of Section 112.316 will apply to obviate the conflict already found to exist. As we are legally bound to narrowly construe such exemptions (See State v. Nourse, 340 So. 2d 966 (Fla. 3d DCA 1976)) we find that it does not.

Accordingly, we find that a prohibited conflict of interest would exist were an Operations and Management Consultant employed as an Assistant Residential Unit Director at the Gulf Coast Center to operate a foster home or group home facility in District 8.

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 21, 2005 and RENDERED this 26th day of April, 2005.

__________________________

Joel Gustafson, Chair

^[1]Group home facilities serve at least four but not more than 15 residents; foster care facilities serve three or fewer. Section 393.063(17) and (20), Florida Statutes.

^[2]Chapter 04-267 became effective July 1, 2004.

^[3]To "regulate" means to prescribe the manner in which a thing is to be done. CEO 94-21. We have found that inspection, oversight, and licensing authority amount to regulation. See, for example, CEO 83-84 and CEO 87-20 (adult congregate living facilities regulated by the HRS districts in which they were located), and CEO 89-35 (infectious waste disposal businesses regulated by HRS Office of Licensure and Certification).

^[4]Under authority of section 2176 of Public Law 97-35, Florida obtained waivers of federal Medicaid requirements to enable the provision of specified home and community-based (HCB) services to persons at risk of institutionalization. Through the administration of several different federal waivers, Medicaid reimburses enrolled providers for services that eligible recipients may need to avoid institutionalization. Waiver program participants must meet institutional level of care requirements. The HCB waiver services are designed to allow the recipients to remain at home or in a home-like setting. Rule 59G-8.200, Florida Administrative Code.