CONFLICT OF INTEREST

STATE UNIVERSITY EMPLOYEE SERVING AS DEPUTY
SECRETARY FOR HEALTH AT THE
DEPARTMENT OF HEALTH

To: Name withheld at person's request, Chair, Department of Behavioral Sciences and Social Medicine, Florida State University College of Medicine (Tallahassee)

SUMMARY:

An employee of Florida State University will not be presented with a conflict of interest under 112.313(7)(a), Florida Statutes, were he to perform the duties of the Deputy Secretary for Health at the Department of Health. Since he is serving as Deputy Secretary through an agreement between the University and the Department, and has no employment or contractual relationship with the Department in his private capacity, Section 112.313(7)(a) does not apply. CEO 15-8, CEO 00-23, CEO 95-28, CEO 95-16, CEO 93-23, and CEO 83-55 are referenced.¹

QUESTION:

Would a prohibited conflict of interest be created under Section 112.313(7)(a), Florida Statutes, were you, an employee of Florida State University, to perform the duties of the Deputy Secretary for Health at the Department of Health, via an agreement between the University and the Department?

Under the circumstances presented, your question is answered in the negative.

By your letter of inquiry and additional correspondence, you relate you are a full-time employee of Florida State University (FSU), where you serve as Chair of the Department of Behavioral Sciences and Social Medicine at the College of Medicine. You indicate that in your role as Department Chair, you oversee several programs, including a contract funded by a grant from the Department of Health's (DOH) Tobacco Program. You relate FSU uses the grant money received from the Tobacco Program to provide training and services concerning tobacco cessation. You indicate you also exercise a modest oversight role over several other FSU programs funded by Department of Health grants, such as a cancer-screening contract. You state your supervision of the work performed under each of these contracts—including the tobacco contract—is limited. You advise you have no day-to-day role in administering the programs and you are not responsible for applying on FSU's behalf for grant money from DOH.²

You state that FSU recently added to your responsibilities by entering into an interagency agreement with DOH. Pursuant to the terms of this agreement, you are temporarily serving as the Deputy Secretary for Health at DOH in addition to your responsibilities at FSU.³ You indicate FSU remains your employer and you do not receive any payment or a W-2 Federal tax form from DOH, although DOH compensates FSU for the services you are providing. You advise you are not a party to the interagency agreement—it is strictly between FSU and DOH—and you, personally, have no contractual relationship with DOH.

As Deputy Secretary for Health, you oversee the majority of DOH programs based in Tallahassee, except for administration and programs related to the Division of Children's Medical Services. In particular, you supervise the Division of Community Health Promotion, which, in turn, houses the Tobacco Program that funds FSU's tobacco contract. You also indicate the Division of Community Health Promotion houses the Cancer Program that funds FSU's cancer-screening contract. You indicate you have limited contact with the personnel in the Tobacco and Cancer Programs,⁴ but, nevertheless, have some decision-making authority over the Programs themselves.

Regarding the disbursement of DOH grant money, you indicate DOH follows a process whereby grant applications are reviewed by several external sources, feedback is obtained from DOH's Biomedical Advisory Board, and the DOH Secretary makes the ultimate funding decision. You indicate the identities of grant applicants remain "blinded" until late in the evaluation process, and you do not participate in making any determinations—or offering any recommendations—concerning which educational institutions will receive grant funding.

Given this context, you inquire whether a conflict of interest is created, considering that certain programs which you oversee at DOH fund research which you supervise—albeit in a limited capacity—at FSU.

The statute relevant to your inquiry is Section 112.313(7)(a), Florida Statutes, which 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 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.

(emphasis added). The statute is only triggered if a public officer or employee of an agency holds an employment or contractual relationship in addition to his primary public employment or public office. See CEO 15-8. You are a full-time employee of FSU, which is your agency.⁵ The question then becomes whether your service as Deputy Secretary for Health constitutes an "employment" or "contractual relationship."

A necessary element of "employment" is compensation or some form of consideration. See CEO 00-23, CEO 95-28, CEO 95-16, and CEO 93-23. Here, DOH is not providing you with compensation or any form of consideration for your service as the Deputy Secretary for Health, and does not issue you a W-2 Federal tax form. Rather, all your compensation comes from FSU.

We addressed a similar situation in CEO 83-55, which concerned a municipal police chief directing traffic at a local bank outside his regular hours and pursuant to an agreement between the municipality and the bank. The municipality alone compensated the police chief for the hours he spent on this special duty and, in turn, the municipality was reimbursed by the bank. We determined that the police chief was not "employed" by the bank and, therefore, had no prohibited conflict of interest under Section 112.313(7)(a). Here, considering the similar arrangement between FSU and DOH and the fact that your compensation comes from FSU alone, we find you are not "employed" by DOH.⁶

Nor do you do have a "contractual relationship" with DOH. You indicate you have not contracted in your private capacity with DOH, and your service as Deputy Director for Health is through an interagency agreement between DOH and FSU to which you are not a party.

Accordingly, while the nature of your position at FSU has changed—temporarily—it does not appear you have entered into an "employment" or "contractual relationship" with DOH triggering the application of Section 112.313(7)(a). Essentially, the interagency agreement simply expanded the scope of your duties as an FSU employee to include the responsibilities typically performed by the Deputy Director for Health. Assuming the facts you describe remain materially unchanged, you are not prohibited by Section 112.313(7)(a) from serving as Deputy Director for Health while maintaining your employment at FSU.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 27, 2018, and RENDERED this 1st day of August, 2018.

____________________________________

Guy W. Norris, Chair

^[1]Prior opinions of the Commission on Ethics can be viewed at www.ethics.state.fl.us.

^[2]In particular, you indicate you have removed yourself from being the Principal Investigator (PI) on these contracts, which you define as the individual responsible for ensuring the work of the contract is being completed.

^[3]You state your assignment to DOH is not permanent and is anticipated to last only eight to ten months.

^[4]You state there are at least "two layers of personnel" between you and Tobacco Program staff. You indicate the bureau chief managing the Program reports to the Division director who, in turn, reports to you.

^[5]Neither your FSU nor your DOH roles make you a "public officer," as that term is used in Section 112.313(7)(a).

^[6]Because you are not employed by DOH, we need not address whether your employment at FSU might conflict with your service as Deputy Secretary. However, we note that you are not applying on FSU's behalf for grant money from DOH and your service in both roles is at the behest of the Department itself.