CEO 90-10 -- January 24, 1990

CONFLICT OF INTEREST

STATE REPRESENTATIVE EMPLOYED BY HEALTH CARE MANAGEMENT FIRM

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

SUMMARY:

Neither the Code of Ethics nor Article II, Section 8, of the Florida Constitution prohibits a State Representative who is Chair of the Committee on Finance and Taxation from employment as a sales consultant with a health care management firm. The Representative may prepare proposals on behalf of the health care firm in response to requests for proposals from various hospitals without violating the Code of Ethics, provided that she does not use her position to gain information which is not available to the general public or otherwise misuse her public position in preparing the proposals. Under Section 112.3143(2), Florida Statutes, the Representative should file a memorandum of voting conflict after voting on matters which involve a special private benefit to either her or her employer.

QUESTION 1:

Does the Code of Ethics for Public Officers and Employees or Article II, Section 8, of the Florida Constitution prohibit you, a State Representative who serves as Chair of the House Committee of Finance and Taxation, from employment as a sales consultant with a health care management firm or from preparing proposals in response to requests for proposals by hospitals on behalf of this firm?

Your question is answered in the negative.

In your letter of inquiry, you advise that you are a member of the Florida House of Representatives and serve as Chair of the Committee on Finance and Taxation. You have been offered a position as a sales consultant with a health care management firm which contracts with hospitals to provide for the delivery and administration of emergency medical care services. If you were to accept this position with the firm, your responsibilities would involve contacting hospitals throughout the State regarding the services which the firm provides. In addition, your responsibilities would include certain special assignments, such as working with specific hospitals in the area of trauma center designation or in the establishment of proposed residency programs.

Some of the health care providers which you would contact in this position would be special districts established by special acts of the Legislature. You also anticipate that the firm may wish to respond to requests for proposals (RFP) from hospitals in regard to services provided by the health management firm.

You further advise that it is possible that various proposals to fund trauma care or emergency medical care services may be presented to you in your capacity as Chair of the Finance and Taxation Committee. These proposals usually would involve the imposition of statewide fees or taxes to fund trauma care or emergency medical care, although a proposal could involve a district wide fee, tax, or levy which would benefit a particular hospital or district. Such a hospital or district conceivably could be a client of the health management firm.

In regard to your employment as a sales consultant with the health management firm, neither Article II, Section 8(e), of the Florida Constitution nor the Code of Ethics for Public Officers and Employees would prohibit you from accepting this position. As we stated in CEO 89-6, Article II, Section 8(e), does not prohibit a State Representative from representing another for compensation before private entities or political subdivisions of the State which are not State agencies. For the same reasons enunciated in CEO 89-6, we believe that hospital districts are not State agencies; therefore the prohibition of Article II, Section 8(e), does not apply. Article II, Section 8(e), would prohibit you, however, from contacting any State agency, such as the Department of Health and Rehabilitative Services, on behalf of either your employer or any hospital contracting with your employer.

The provision of the Code of Ethics applicable to potentially conflicting employment, Section 112.313(7)(a), Florida Statutes, would not prohibit you from working for the firm, as Section 112.313(7)(a)(2) exempts from the prohibitions of this Section members of legislative bodies which exercise their regulatory authority merely through the enactment of laws. See CEO 89-6. As you are member of a legislative body which regulates hospital districts and business entities only through the enactment of laws, your proposed employment would be exempted from any potential prohibition under Section 112.313(7)(a).

Based on the above rationale, it does not appear that the Code of Ethics or Article II, Section 8, of the Florida Constitution would prohibit you from participating in the development of a response to a request for proposals regarding emergency medical care delivery and administrative services to health care providers as part of the duties of your position with the health care firm. Since the hospital districts are not State agencies, Article II, Section 8(e) would not prohibit you from participating in developing the responses to requests for proposals with private and local government entities. See CEO 89-6.

As a caveat, we direct your attention to the following provisions of the Code of Ethics:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes.]

DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), Florida Statutes.]

These provisions would prohibit you from using your official position to gain access to information regarding hospital districts which would not be available to the general public, and from otherwise using your official position in a manner inconsistent with the proper performance of your public duties in order to assist your employer in the preparation of a proposal. In order to avoid even the appearance of favoritism, we suggest that you continue scrupulously to separate your public role from your private employment in your contacts with public and private entities which may be affected by legislation.

Accordingly, we find that neither Article II, Section 8(e), Florida Constitution, nor the Code of Ethics for Public Officers and Employees would prohibit you from employment as a sales consultant with the health care management firm or from preparing proposals on behalf of the firm.

QUESTION 2:

If you were to accept employment with the health care management firm, would you be prohibited from voting on general legislation providing funding for emergency medical care delivery and administrative services or on special legislation which would provide funding to a specific hospital district?

In regard to your voting on general legislation which would provide funding for emergency medical care delivery and administrative services, Section 112.3143(2)(a), Florida Statutes, states:

Except as provided in subsection (3), no public officer is prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure which inures to his special private gain or the special gain of any principal by whom he is retained shall, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.

This statutory provision does not prohibit you from voting on any measure. If a measure should involve a special private gain to either you or the health care management firm which employs you, however, you would need to disclose that fact by filing a memorandum of voting conflict with the Clerk of the House within 15 days following the vote. We have promulgated CE Form 8A, Memorandum of Voting Conflict, which may be used in making this disclosure.

As a general rule, a measure which affects all hospitals or hospital districts equally, whether or not they contract with your employer, probably would not require you to file a memorandum of voting conflict. If the measure involves only a specific hospital or group of hospitals, all of which contract with your employer, and the funding measure would affect your employer's contract with the hospital or hospitals, then you may need to file such a memorandum. See, generally, CEO 81-12, Question 3. In addition, if a measure involves a hospital or hospitals which have no contract with your employer, but the measure would assist you in obtaining a contract with that or those hospitals, then you may be required to file a memorandum of voting conflict. The question of whether or not you will need to file this memorandum is better addressed in the context of the specifics of a particular vote, since the facts and circumstances surrounding each measure may differ. Therefore, we suggest that if you are in doubt as to whether you may need to file a memorandum of conflict in regard to a particular vote, you contact our staff for guidance or seek a further opinion.

Accordingly, we find that you are not prohibited from voting on general or special legislation which would provide funding for emergency medical care delivery and administrative services and that you need not file a memorandum of voting conflict unless you vote upon a measure which involves a special private gain to you or to the health care management firm which would employ you.