CEO 90-36 -- April 26, 1990

CONFLICT OF INTEREST

CHILD OF D.H.R.S. DEPUTY DISTRICT ADMINISTRATOR AND CHILD OF MENTAL HEALTH PLANNING COUNCIL MEMBER ON BOARD OF DIRECTORS OF MENTAL HEALTH CONTRACT PROVIDER

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

SUMMARY:

A prohibited conflict of interest under Section 112.313(3), Florida Statutes, would not be created were the child of a D.H.R.S. Deputy District Administrator to sit on the board of directors of a mental health care provider which contracts with his district, as long as the Deputy District Administrator does not act in his official capacity as purchasing agent to approve the contract with the provider. To avoid a possible conflict under Section 112.313(6), Florida Statutes, the Deputy District Administrator should remove himself from any consideration by the District concerning the mental health center. No prohibited conflict of interest would be created under the Code of Ethics were a child of a member of the Alcohol, Drug Abuse and Mental Health Planning Council to serve on the board of directors of a contract mental health provider for the Department, as the Council does not have the authority to purchase services from the provider and Section 112.313(7)(a), Florida Statutes, only addresses contractual or employment relationships of a public officer, not his or her child. It is suggested, however, that the council member remove herself from the consideration of matters involving the contract mental health provider for which her child serves as Director.

QUESTION 1:

Would a prohibited conflict of interest be created were a child of a Deputy District Administrator of D.H.R.S. to sit on the Board of Directors of a mental health services provider which contracts with the District?

Under the circumstances described below, this question is answered in the negative.

In your letter of inquiry and in telephone conversations with our staff, you have advised that the Deputy District Administrator for District Nine of the Department of Health and Rehabilitative Services, Dr. James Howell, has a child who wishes to sit on the board of directors of a mental health center which is contracting with the District. The District Administrator must approve and sign all contracts with the District. It is the signature of the District Administrator which authorizes the expenditure of public funds to the contract provider. In the absence of the District Administrator, however, contracts and the expenditure of public funds may be approved by the Deputy District Administrator.

In regard to your question, Section 112.313(3), Florida Statutes, provides:

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 of 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. [Emphasis added.]

"Purchasing agent" is defined in Section 112.312(16), Florida Statutes, as follows:

'Purchasing agent' means a public officer or employee having the authority to commit the expenditure of public funds through a contract for, or the purchase of, any goods, services, or interest in real property for an agency, as opposed to the authority to request or requisition a contract or purchase by another person. [Emphasis added.]

Pursuant to Section 112.312(16), a "purchasing agent" is an employee having the authority to commit the expenditure of public funds through a contract for services. Section 112.313(3), Florida Statutes, prohibits an employee from acting in his capacity as a purchasing agent to purchase services for his agency from a business entity of which his child is a director. To violate Section 112.313(3), the Deputy District Administrator must be acting in his official capacity as purchasing agent to purchase services from the mental health center.

Therefore, although the Deputy District Administrator has the authority to commit expenditures of public funds for the provider's services, if he does not do so in the case of a provider of which is a director, Section 112.313(3), Florida Statutes, would not be violated. If he acts to sign a contract authorizing the payment of public funds to this provider, however, he would be in violation of Section 112.313(3), Florida Statutes.

We bring to your attention Section 112.313(6), Florida Statutes, which provides:

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.

Any use by the Deputy District Administrator of his position, such as an attempt to influence the District Administrator's decision, in order to benefit his child or the entity of which the child serves as director could be found to violate this Section. Therefore, we strongly suggest that the Deputy District Administrator remove himself from any decision by the District regarding the mental health center for which his child serves as director.

Accordingly, we find that Section 112.313(3), Florida Statutes, would not be violated if the Deputy District Administrator did not sign a contract with a mental health center for the provision of services to the Department, even were his child to serve on the board of directors of the center. We strongly suggest, however, that the Deputy District Administrator remove himself from any decision regarding the center.

QUESTION 2:

Does a prohibited conflict of interest exist where the child of a member of the local Alcohol, Drug Abuse and Mental Health Planning Council serves on the board of directors of a contract mental health provider for the Department of Health and Rehabilitative services?

This question is answered in the negative.

In your letter of inquiry and in a subsequent telephone conversation, you have advised that Alcohol, Drug Abuse, and Mental Health Councils are created by Section 394.715, Florida Statutes, to assess the alcohol, drug abuse, and mental health needs in their districts or subdistricts. The Councils also review the development of the alcohol, drug abuse, and mental health plans and budgets, and are responsible for approving the final plans. In this process, it is possible that the Council could recommend that the District contract with a specific provider. Only the District Administrator, however, can actually approve a contract with a specific provider.

The members of a Council are appointed by any county governing body which provides funding for alcohol, drug abuse, and mental health services within the district. The number of appointments which each county can make is based upon the county's percentage of population within the service district. Each county in the district, however, is entitled to at least one appointment.

Under Section 394.715, Florida Statutes, members of the Council must include, but are not limited to, members of the judiciary, representatives of law enforcement, representatives of the school systems, clients or their families, representatives of district human rights advocacy committees, members of district long-term care facility ombudsman councils, and members of the multi-agency service network for severely emotionally disturbed students or other recognized patient advocacy groups. A maximum of 20 members may be appointed.

You state that Evelyn Bloom, who is a member of the Planning Council, has a child who serves on the board of directors of a nonprofit contract mental health provider for the Department of Health and Rehabilitative Services. In regard to this situation, Section 112.313(3), Florida Statutes, provides:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

In our view, members of the Alcohol, Drug Abuse and Mental Health Councils are appointed public officers who are subject to the Code of Ethics for Public Officers and Employees. However, although the Council could recommend a specific contract provider to the District, it does not appear that the Council has any authority to actually contract with health services providers or otherwise purchase their services. Therefore, it does not appear that Section 112.313(3) would apply.

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.

This provision addresses only certain prohibited contractual and employment relationships on the part of a public officer, not an officer's child. Therefore, Section 112.313(7)(a) also does not apply here. In addition, we note that the provider in question contracts with the Department of Health and Rehabilitative Services, not with the Council.

We bring to your attention Section 112.313(6), Florida Statutes, which states:

Any use by the Council member of her official position, in a manner inconsistent with her public duties, in order to benefit her child could be determined to violate this section. Therefore, we suggest that the member remove herself from consideration of any matter involving the provider for which her child serves as a director.

Accordingly, we find that no prohibited conflict of interest exists where the child of a member of the Alcohol, Drug Abuse, and Mental Health Council serves on the Board of Directors of a mental health services provider contracting with the Department of Health and Rehabilitative Services.