CEO 07-9 -- April 25, 2007

CONFLICT OF INTEREST

DCF CONTRACT MANAGER EMPLOYED BY SUBCONTRACTOR
OF NONPROFIT CORPORATION CONTRACTING WITH DCF

SUMMARY:

A prohibited conflict of interest exists under the second portion of Section 112.313(7)(a), Florida Statutes, where an employee of the Department of Children and Family Services serving as a contract manager of a Department contract with a nonprofit is employed secondarily by an organization subcontracting with the nonprofit to perform a portion of the services deliverable under the contract. CEO 89-15 is referenced. ¹

QUESTION:

Does a prohibited conflict of interest exist where you, a contract manager for the Department of Children and Family Services, are employed by a subcontractor of a nonprofit corporation contracting with the Department?

Under the circumstances presented in your inquiry, your question is answered in the affirmative.

By your letter of inquiry and additional information provided to our staff, we are advised that you are employed by the Department of Children and Family Services² (DCF), in its District 7, working as a contract manager. Further, we are advised that you are secondarily employed by an organization which is a subcontractor to a nonprofit corporation which supplies community based care (CBC) services under a contract with the Department. In addition, we are advised that your work for the organization occurs outside the DCF District of your public employment (in the Department's District 13) and is unrelated to your public capacity duties. However, we are advised that as a DCF contract manager you oversee DCF's contract with the nonprofit and that the nonprofit subcontracts its case management (CMO) services, deliverable under its contract with DCF, to several subcontractors, including the organization secondarily employing you.

Section 112.313(7)(a), Florida Statutes, the provision of the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes) which is applicable to your inquiry, 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.

The second portion³ of Section 112.313(7)(a) prohibits a public employee from having any employment or contractual relationship that will create a continuing or frequently recurring conflict or that would impede the full and faithful discharge of her public duties.

In our view a prohibited conflict of interest exists under this provision as you, in your DCF capacity as a contract manager, are responsible for a contract between the nonprofit and DCF which involves the organization (your private employer) as a subcontractor actually performing the services delivered for the nonprofit under the same contract. Our decision herein is consistent with our decision in CEO 89-15, in which we found that a prohibited conflict existed for a district program manager of the former Department of Health and Rehabilitative Services (DHRS) where she worked privately/secondarily for a school board contracting with DHRS and where she was required in her DHRS capacity to supervise individuals responsible for contracts between DHRS and the school board.

In making our decision herein, we have not overlooked your arguments that DCF's contractual obligation is to the nonprofit (with which you are not employed) and is not to the organization (with which you are secondarily employed) or to the other subcontractors of the nonprofit; that you are not responsible for the organization's compliance with its contractual obligations as a subcontractor to the nonprofit; that you are not in a position to make a DCF capacity decision regarding the organization's daily operations or practice; that District 13 and District 7 have different contract managers; and that the District 13 subject matter may be different from the District 7 subject matter. Instead, we are not persuaded that as a matter of fact, under applicable law, your DCF duties do not have the potential to impact your secondary employer (a subcontractor), given, inter alia, that you manage the contract that is in part deliverable via the performance of the subcontractors. For example, you might be tempted, in your DCF contract manager capacity, to ignore nonperformance or similar conduct of the nonprofit under its contract with DCF if the nonperformance related to conduct of the organization (a subcontractor). In reaching our conclusion we do not mean to imply that you actually would be influenced by the interests of your outside employer when managing the DCF contract. The statute is entirely preventive; it is directed at what might happen. Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982).

Accordingly, we find that a prohibited conflict of interest exists where you are secondarily employed by a subcontractor of a nonprofit contracting with the Department under a contract managed by you in your capacity as a Department employee.

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 20, 2007 and RENDERED this 25th day of April, 2007.

______________________________
Norman M. Ostrau, Chairman

^[1]Prior opinions of the Commission on Ethics are viewable on its website: www.ethics.state.fl.us