CONFLICT OF INTEREST
HOSPITAL DISTRICT BOARD MEMBER REAL ESTATE
PROFESSIONAL ON HOME PURCHASES BY DISTRICT EMPLOYEES
To: Mark Herron, Attorney for Board member (Titusville)
SUMMARY:
Under the circumstances contained herein, no prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a member of a hospital district board to act as a real estate professional and receive a commission regarding the purchase of a home by a district management team employee or by district physicians. The situation does not involve the first part of the statute; and under the second part, the board member is not soliciting the business. CEO 75-127, CEO 92-2, CEO 94-16, and CEO 96-27 are referenced.
QUESTION 1:
Would a prohibited conflict of interest be created under Section 112.313(7)(a), Florida Statutes, were a hospital district board member to act as a real estate professional and receive a commission regarding the purchase of a home by a member of the senior management team of a district medical center?
Under the circumstances presented, Question 1 is answered in the negative.
By your letter of inquiry, we are advised that J.J. Parrish serves as a member of the North Brevard County Hospital District Board 1 and also that he is a real estate professional.2 Further, the member desires to know whether the Code of Ethics3 would be violated were he to receive a commission from the purchase of a personal residence by a member of the senior management team of a District medical center, where the team member approached the Board member (without being solicited by the Board member) requesting assistance in finding a personal residence, where the team member met the Board member during the team member's employment recruitment and indicated that he was impressed by the Board member's knowledge of the area, and where the approach by the team member of the Board member in his real estate capacity occurred some length of time after the recruitment meeting.
Section 112.313(7)(a), Florida Statutes, 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.
We find that the Board member's real estate work and receipt of a commission regarding the team member's purchase of a home would not violate the statute, under the circumstances presented. In prior decisions, we have found that the second part4of the statute would not be violated were a member of a governing board to engage in unsolicited sales or relationships with employees of the governmental entity. See, for example, CEO 94-16 (school board member accepting unsolicited investment accounts from school board employees); and compare CEO 75-127, disapproving of solicitation.5
Question 1 is answered accordingly.
QUESTION 2:
Would a prohibited conflict of interest be created under the statute were the board member to act as a real estate professional and receive a commission regarding the purchase of a home by a physician who is accepting employment with the district medical center, where the Board member (without any solicitation by the Board member) is asked by staff of the medical center (who are assisting in recruiting the physician) to show the physician homes in the area?
Question 2 is answered in the negative under the reasoning set forth in our response to Question 1.
QUESTION 3:
Would a prohibited conflict of interest be created under the statute were the Board member to act as a real estate professional and receive a commission regarding the purchase of a home by a physician who has moved to the area as a result of entering into a recruitment agreement with a nonprofit subsidiary of the District which provides financial support to physicians to relocate and practice at the medical center where, once employed, the physician is paid by the medical center, and where (without solicitation) the Board member is contacted by the physician to show the physician homes?
Question 3 also is answered in the negative under the reasoning set forth in our response to Question 1.
The questions are answered accordingly.
ORDEREDby the State of Florida Commission on Ethics meeting in public session on July 27, 2007 and RENDERED this 1st day of August, 2007.
____________________________________
Albert P. Massey, III, Chairman
[1] An independent special tax district under Chapter 2003-362, Laws of Florida, and previous acts.
[2] Your inquiry states that the Board member is licensed as a "realtor," that he would be acting as a "selling realtor," and that he would be working under or in conjunction with a "broker/employer." For purposes of this opinion, we understand these references to mean that the member is a "sales associate" (or holder of a similar State-licensed status) under Part I, Chapter 475, Florida Statutes (Real Estate Brokers, Sales Associates, And Schools). While the various statuses or definitions under Chapter 475 ("single agent," "transaction broker," etc.) may be highly relevant in a given context to limit the business or professional liability of a real estate professional, there is no need for us to be preoccupied with their nuances in the ethics context; in the instant inquiry, there is no doubt that a private real estate employment or contractual relationship exists on the part of the member.
[3] Section 112.313(7)(a), Florida Statutes, is the only provision of the Code of Ethics at issue regarding your inquiry.
[4] We find that the first part of the statute is not at issue. The scenario presented indicates that the team member is not a business entity doing business with the District or its medical center; rather, the scenario states that the team member is an employee. Further, assuming arguendo that the team member was an independent contractor rather than an employee, the Board member's real estate relationship would be with the team member as an individual purchasing a personal residence, not with the team member's business entity aspect or identity. CEO 92-2 (Question 3).
[5] CEO 96-27, to the extent that it can be read to not approve of business or sales even without solicitation, is not particularly useful to our instant decision. In CEO 96-27, rather than receiving a real estate commission regarding a personal residence, the county public hospital board member's situation included employment by a health services company operating a chain of specialty hospitals.