CEO 88-66 -- October 19, 1988

CONFLICT OF INTEREST

D.H.R.S. DISTRICT INTAKE COUNSELOR SUPERVISOR

CONTRACTING TO PROVIDE EMERGENCY SHELTER

FOR DEPENDENT CHILDREN

To: (Name withheld at the person's request.)

SUMMARY:

Sections 112.313(3) and (7)(a), Florida Statutes, would not be violated by a Department of Health and Rehabilitative Services district intake counselor supervisor who wishes to enter into a contract with the Department to provide emergency shelter to dependent children. 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. CEO 85-73 is referenced.

QUESTION:

Would a prohibited conflict of interest be created were a District Intake Counselor Supervisor for the Department of Health and Rehabilitative Services to contract with the Department to provide emergency shelter to dependent children in the Department's custody?

Your question is answered in the negative.

Through your letter of inquiry and telephone conversations with our staff, we have been advised that ...., a District Intake Counselor Supervisor with the Department of Health and Rehabilitative Services, District 11, intends to contract with the Department to provide emergency shelter to dependent children who come into the custody of the Department. An emergency shelter for dependent children is required to provide food, shelter, clothing, school enrollment, medical care, emotional support, and cooperation with pending investigations for interview appointments and court hearings. Licensing and inspection of emergency shelters are handled by a licensing unit, separate from the unit in which the Supervisor in question works. Emergency shelter contracts are handled by a program analyst at the District level. According to your letter, the Supervisor's duties do not include any role, direct or indirect, in the licensing or inspection of emergency shelters or in the awarding or monitoring of shelter contracts.

The subject District Intake Counselor Supervisor is responsible for monitoring the child abuse and neglect investigations assigned to counselors under his supervision. He or the counselor can request placement of a dependent child in an emergency shelter. Placements in specific shelters, however, are handled by a separate central placing unit for the District. Therefore, the Supervisor has no ability to dictate, select, or influence placement in a specific shelter. The only limitations he can set which may require placement in specific shelters must be based upon the case management needs of the child. For example, the child may need to be placed as far away from the home environment as possible, or the child may need a certain type of medical care which a specific shelter may be better equipped to provide. You have stated that the responsibilities of a shelter provider and a District Intake Counselor Supervisor do not overlap. In short, the role of the Supervisor regarding emergency shelter is to request that a child be placed in such a shelter without specifying which shelter.

The emergency shelter program within District 11 is at the present time in need of more beds. Five institutions provide 138 beds, and 16 family shelters provide 95 more, for a total of 233 beds. We are advised that at any one time there are 250 children characterized as being in need of emergency shelter, and at the present time a large number are not in emergency shelter beds. This is due to the Department's policy of keeping siblings together in an emergency shelter even though they may not all be classified for such care, the temporary placement of foster care-classified children in an emergency shelter until a proper foster home can be found, and the shortage of beds to deal with the need. Because of this, emergency shelter children often are placed in foster home care, resulting in situations which create administrative and operational problems for both the Department and foster care parents. The Supervisor's proposed contract would help alleviate the shortage problems by providing five beds in a family emergency shelter situation.

Section 112.313(3), Florida Statutes, states:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1987).]

The Supervisor in question is an employee of the Department of Health and Rehabilitative Services, District 11. Therefore, Section 112.313(3), prohibits him from selling his services to his own agency, the District.

Section 112.313(7)(a), Florida Statutes, states:

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 (1987).]

This provision of the Code of Ethics prohibits the subject employee from having any employment or contractual relationship with a business entity which is doing business with or is regulated by District 11.

Based upon the information provided to us, the Supervisor's ability to request placement in an emergency shelter, even if a specific shelter cannot be requested, has the potential of creating a conflict of interest. Having an emergency shelter in the area has the potential to influence an employee's judgment on whether a child should be placed in an emergency shelter as opposed to other alternatives.

However, we are of the opinion that the following provision of the Code of Ethics is applicable to the circumstances presented here:

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.[Section 112.316, Florida Statutes (1987).]

In previous opinions we have found Section 112.316 applicable where a Department employee was not involved with the contracting or regulatory process between the Department and his private employer and was not in a position to refer Department clients to his private employer. See, for example, CEO 87-51 and CEO 85-73.

While the Supervisor conceivably could use his position to unnecessarily classify children as needing emergency shelter in order to fill the shelter which he will be providing, this poses only minimal concern under present circumstances. The great need for emergency shelter beds and the existence of numerous other providers makes it unlikely that the Supervisor could substantially influence referrals to his emergency shelter. Given his lack of responsibility in the licensing, contractual, and direct referral processes, we consider this situation to closely resemble that which was present in CEO 85-73. There we found no conflict of interest to be present where a District Intake Counselor was offered employment with an adolescent group home which was licensed and had a contract with HRS and where referrals to the home were made by a separate case review committee.

Accordingly, we find that no prohibited conflict of interest would be created were the subject District Intake Counselor Supervisor to enter into a contract with District 11 of the Department to run an emergency shelter for dependent children.