CEO 86-24 -- April 3, 1986

CONFLICT OF INTEREST

D.H.R.S. PHYSICIANS AT STATE HOSPITAL SEEKING EMPLOYMENT WITH EMERGENCY SERVICE PROVIDER AS PHYSICIANS AT STATE HOSPITAL

To: Mr. Richard L. Insley, Administrator, G. Pierce Wood Memorial Hospital, District 8, Department of Health and Rehabilitative Services, Arcadia

SUMMARY:

No prohibited conflict of interest would be created were physicians with a state hospital of the Department of Health and Rehabilitative Services to work for an emergency service provider as physicians at the hospital. Here, the physicians would be employed by or have a contractual relationship with a business entity which is doing business with the hospital, in apparent violation of Section 112.313(7)(a), Florida Statutes. However, Section 112.316, Florida Statutes, would permit this employment since it would not interfere with the full and faithful discharge of their duties.

QUESTION:

Would a prohibited conflict of interest be created were physicians with the G. Pierce Wood Memorial Hospital of the Department of Health and Rehabilitative Services to work as physicians for an emergency service provider at the State Hospital?

Your question is answered in the negative.

In your letter of inquiry you advise that Dr. Sergio Pero, a Senior Physician employed by the Department of Health and Rehabilitative Services, District 8, at the G. Pierce Wood Memorial Hospital, seeks employment with an emergency service provider which may contract to provide the State Hospital physician coverage after normal duty hours, on weekends, and on holidays. You further advise that District 8 organizationally is responsible for the administration of the State Hospital and makes the final decision on entering into the contract. You also note that three other physicians at the State Hospital are interested as well in this additional employment. However, you advise that none of these physicians played any role in the contract negotiations between the District and the emergency service provider. The Senior Physician's primary duties include performing psychiatric and medical examinations, prescribing proper treatment, and making daily ward rounds to monitor patients. In a telephone conversation with our staff, you advised that under the contract the emergency service provider will be paid on an hourly rate for providing one physician nightly, on weekends and on holidays, and that the amount paid will not be based on the number of patients treated by the physician.

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 (1985).]

This provision prohibits a public employee from having any employment or contractual relationship with a business entity which is doing business with this agency. The term "agency" is defined in the Code of Ethics to mean

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university. [Section 112.312(2), Florida Statutes (1985).]

In previous opinions, we have determined the "agency" of a D.H.R.S. employee by analogy to the department/division/bureau model specified in this definition. For the reasons expressed in CEO 79-48 and CEO 81-2, and as the physicians' position description indicates that their "bureau" is District 8, we find that this District is their "agency" for purposes of the Code of Ethics.

We generally have advised that a business entity is doing business with an agency where the parties have entered into a lease, contract, or other type of legal arrangement under which one party would have a cause of action against the other in the event of a default or breach. See, for example, CEO 77-36, CEO 80-87, and CEO 82-50. In our view the District and the emergency service provider would enter into such a relationship by signing the contract.

However, Section 112.313(7)(a) must be read in conjunction with Section 112.316, Florida Statutes, which provides:

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 (1985).]

Under these circumstances, it is apparent that the physicians' contemplated employment with the emergency service provider would not interfere with the full and faithful discharge of their duties as physicians for the State Hospital.

Accordingly, we find that no prohibited conflict of interest would be created were the subject physicians to work for the emergency service provider while remaining employed as physicians for the G. Pierce Wood Memorial Hospital.