CEO 95-27 -- October 13, 1995

CONFLICT OF INTEREST

COUNTY FIREFIGHTERS EMPLOYED BY AMBULANCE COMPANIES

DOING BUSINESS WITH COUNTY AND SUBJECT TO ITS REGULATION

To: Ms. Shannon L. Wilson, Assistant County Attorney (Melbourne)

SUMMARY:

The second part of Section 112.313(7)(a), Florida Statutes, prohibits county firefighters from being employed by private ambulance companies that are doing business with the county because, while a separate agency executed the contracts with the private companies, the county employees oversee and regulate the companies' performance under their respective contracts. Their inability to objectively evaluate the performance of their secondary employers is viewed as a continuing or frequently recurring conflict between their private interests and the performance of their public duties, and as an impediment to the full and faithful discharge of their public duties. Also, the private ambulance companies have agreed to indemnify the County, and where County employees are also working for a private ambulance company, they expose the County to potential liability resulting from their dual employment. Additionally, county employees working privately for one of the contractors are in a position to potentially refer business to their private employer.

To the extent that the facts differ from CEO 82-23, then CEO 82-23 is hereby superseded.

QUESTION:

Does a prohibited conflict of interest exist where county firefighters are employed as paramedics with one of two private companies that have been granted exclusive franchises to operate by the County and that the County contracts with for specified transport services?

Your question is answered in the affirmative under the specific factual situation presented.

In written information provided to our staff and as a result of telephone conversations with our staff, we are advised that six individuals employed by the Brevard County Public Safety Department also have supplemental employment with two private, non-profit corporations which have been granted exclusive franchises to operate within certain specified areas of Brevard County. Additionally, the County Commission has entered into a contract with one of the entities known as Harbor City Volunteer Ambulance Squad, Inc. (HCVAS), wherein the County pays an annual amount to HCVAS for its services in providing emergency and non-emergency transport in the geographical area agreed to by contract. The County employees who work part-time for HCVAS include William Wall, John Arnold, and Jay McCarthy. Under the County's contract with the other entity, known as Coastal Health System, Inc. (Coastal), Coastal provides non-emergency transport services and derives its income from patient billings where the rate schedule has been approved by the County. County employees who also work for Coastal include Tom Campbell, Steve Pacetti, and Bob Furci. You have asked us to determine whether a prohibited conflict of interest is created where these County employees work as paramedics during their off-duty hours for either of these two companies.

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), Florida Statutes (1993).]

The first part of this provision prohibits a public employee from having an employment relationship with a business entity which is doing business with or regulated by his agency. The second part of Section 112.313(7)(a) prohibits a public employee from having an employment relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which impedes the full and faithful discharge of his public duties.

In CEO 82-23, which was previously rendered to Brevard County, we opined that Section 112.313(7)(a) would not be violated where a County firefighter was employed with a private ambulance squad because, under the first part of Section 112.313(7)(a), the "agency" which had entered into the contract with the private ambulance squad--the County Commission--was a separate agency from that employee's agency, the Fire Department for Fire Control District 4. Thus, since the Fire Control District 4 neither did business with nor regulated the private ambulance company, we concluded that that employee did not have a conflict under the first part of Section 112.313(7)(a). Nor was a conflict determined to exist under the second part of Section 112.313(7)(a), because his County firefighting duties did not involve emergency medical services and because Fire Control District 4 encompassed a different geographic area of the County from that served by the private ambulance company.

Since the rendering of CEO 82-23, Brevard County has reorganized and consolidated its operations into the Brevard County Public Safety Department. This one department contains three divisions, including the Fire Rescue Operations Division to which the subject employees are assigned. In numerous opinions we have expressed the view that the legislative intent was to define an employee's agency for purposes of the Code of Ethics as the lowest departmental unit within which his influence might reasonably considered to extend. See CEO 93-31 and the opinions cited therein. Therefore, because these employees are all assigned to the Fire Rescue Operations Division of the Department of Public Safety, their "agency" is the Fire Rescue Operations Division.

In CEO 93-31, we concluded that a prohibited conflict of interest existed where a battalion chief and emergency operations shift commander with the Clay County Department of Public Safety was also employed by a private ambulance company located in Jacksonville and which had been granted a certificate to operate by Clay County. That situation created a conflict under the first part of Section 112.313(7)(a) because it was determined that he had an employment relationship with a business entity which was regulated by his agency. It was also viewed as a conflict under the second part of Section 112.313(7)(a), not because the employee was in a position to make referrals to his private employer, which has been the focus of our concern in other opinions involving emergency medical services, but because he supervised some of the same employees in his private capacity as he did in his public capacity and because in his public position the individual was required to perform unbiased investigations of applications for renewal of his employer's and its competitors' certificates of public convenience and necessity and any complaints that may have been filed against such certificate-holders.

The facts represented here are somewhat analogous to those contained in CEO 93-31. We are advised that the employees of the Fire Rescue Operations Division are the County's first and primary indicator of patient care that the contractors are delivering, and that the County expects these employees to report any deviations of protocol, Florida Statutes, or Florida Administrative Code regulations they witness with respect to the contractors' services. Thus, as in CEO 93-31, we view this situation as presenting a conflict of interest under the second part of Section 112.313(7)(a), since the affected County employees may not be able to objectively evaluate the performance of their secondary employers. There also is concern that where, as in this situation, the private ambulance companies have agreed to indemnify the County under their respective contracts, indemnification could be disputed where County employees are working for the contractor during their off-duty hours and expose the County to liability for acts they commit in their private capacity. For these reasons, we conclude that the situation as represented presents a conflict of interest prohibited by the second part of Section 112.313(7)(a), Florida Statutes.

Additionally, the County represents that because of the nature of its contract with Coastal, whereby Coastal furnishes non-emergency transport in the northern part of the County, there is an opportunity for County employees to refer business to Coastal. The County's policies require that Coastal be contacted if the situation is a non-emergency, and the decision to contact Coastal would be made by County employees after they arrive on-scene. Where those employees are dually-employed by Coastal, the ability to refer business to one's private employer has been determined to create a prohibited conflict of interest under the second part of Section 112.313(7)(a). See CEO 92-9, CEO 86-34, and CEO 84-19. However, the opportunity for referral does not appear to exist in the case of HCVAS.

Thus, to the extent that the facts differ from CEO 82-23, then CEO 82-23 is hereby superseded.

Finally, you have asked us to consider whether conflicts could be "exempted" where the County enacts an ordinance permitting its public employees to practice their profession outside of their public employment. In our view, Section 112.313(7)(b), Florida Statutes, to which you refer, has no applicability. Section 112.313(7)(b) states:

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.

Typically, we have discussed this provision in situations where the public officer sits on a board that regulates himself or his interests and where, by law, persons holding those interests are required or permitted to sit on that board. See, for example, CEO 94-45 and CEO 84-63. We know of no law requiring County firefighters to also hold private employment as paramedics. Nor do we know of any legal basis for a County Commission to authorize conduct which is expressly prohibited by statute. See, CEO 85-38. In fact, Section 112.326, Florida Statutes, expressly permits governing bodies of political subdivisions to impose additional or more stringent standards of conduct upon its own officers and employees. Therefore, we do not believe that Section 112.313(7)(b) has any applicability to this situation.

Section 112.313(12) contains a number of provisions which operate to exempt prohibited conflicts of interest created under Section 112.313(7)(a), Florida Statutes. However, we have not been made aware of the applicability of any particular exemption to the situation in Brevard County.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 12, 1995, and RENDERED this 13th day of October, 1995.

__________________________

William J. Rish

Chairman