CONFLICT OF INTEREST

CITY COMMITTEE MEMBER EMPLOYED BY PRIVATE,
NONPROFIT CORPORATION RECEIVING FUNDING FROM THE CITY

To: Kirby G. Oberdorfer, Deputy Director, City of Jacksonville Ethics, Compliance & Oversight Office (Jacksonville)

SUMMARY:

No prohibited conflict of interest would be created were a member of the City of Jacksonville's Opioid Abuse Prevention Committee to be employed by a private, nonprofit corporation that, as a direct result of funding recommended by the member's agency, may have future contracts with the City to provide various services and programs. Section 112.313(7)(b), Florida Statutes, acts as a "waiver" of conflict under Section 112.313(7)(a), Florida Statutes, and the elements necessary for a conflict under Section 112.313(3), Florida Statutes, are not present. CEOs 04-1, 07-11, and 18-6 are referenced.¹

QUESTION:

Would a prohibited conflict of interest be created were a member of the City of Jacksonville's Opioid Abuse Prevention Committee to be employed by a nonprofit that, as a direct result of funding recommended by the member's agency, may have future contracts with the City to provide various services and programs?

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

In your letter of inquiry, additional materials supplied to our staff, and telephone conversations between you and our staff, you relate that you make inquiry in behalf of Kevin McCarthy, a prospective member of the newly-created City of Jacksonville's Opioid Abuse Prevention (OAP) Committee. You relate that, in his private capacity, Mr. McCarthy (the prospective member) is employed as a Psychiatric and Family Nurse Practitioner by River Region Human Services, Inc. (River Region), a private, nonprofit corporation that provides treatment services to persons affected by substance abuse. Prior to the creation of the OAP Committee,² you explain that in June 2017, the City Council for the City of Jacksonville funded "Project Saves Lives," a pilot program developed to address the opioid epidemic in Duval County in conjunction with local service providers specializing in addressing opioid addiction issues, including the prospective member's private capacity employer, River Region. The pilot program was comprised of two components: (1) evaluation and treatment of patients for six months and (2) data collection, analysis, and reporting on the effectiveness of the opioid abuse treatment programs for the six months during treatment and six additional months after the treatment ends. You relate that the treatment component consisted of initial evaluation and referral of patients to a targeted opioid treatment program with either in-patient/residential or outpatient services. You explain that, initially, a total of $1,467,289 was appropriated for the Project Saves Lives opioid epidemic pilot program, including $643,081 to River Region.³ However, you explain that, despite executing its contract with the City on October 17, 2017, for a term of twelve (12) months following the first date services were provided to patients, River Region received only $37,500 of the $643,081 originally appropriated to it, with the last payment occurring on November 15, 2018. As such, you relate that River Region is not receiving any funding for, or participating in, the Project Saves Lives program in the 2019-2020 fiscal year (FY 2019-2020), which began on October 1, 2019.⁴

As it relates to his private capacity employment with River Region, in his current position, the prospective member specializes in medication-assisted treatment (MAT) designed to treat substance abuse disorders, including opioid addiction.⁵ You further relate that although the prospective member assesses, diagnoses, treats, and prescribes medications for patients with addiction, he is not involved and does not provide any treatment related to the Project Saves Lives opioid program and he has no interaction or involvement with the City in relation to his private capacity employment at River Region. The prospective member is also not personally involved in obtaining Project Saves Lives program funding (or any other funding) for his employer from the City. Additionally, the prospective member's salary as a Psychiatric and Family Nurse Practitioner at River Region is not funded through monies provided by the City. Based upon the prospective member's professional qualifications and experience in treating opioid addiction, you explain that he was recently nominated by the Mayor of the City of Jacksonville to serve as the designated Mental Health Professional member of the OAP Committee, in accordance with Jacksonville Ordinance Code Section 84.202, which provides, in part:

Membership; appointment and removal; terms of office.—(a) Composition. The Committee shall consists of nine members to be appointed by the Mayor within the following categories:

(1) Medical Professional, Program Treatment;

(2) Medical Professional, Emergency Department;

(3) Mental Health professional;

(4) Addiction Treatment Provider;

(5) Certified Recovery Peer Specialist or Certified Recovery Support Specialist;

(6) Member from a Veteran Services Organization;

(7) Member from the Health Department;

(8) Member from a Homeless Advocacy organization; and

(9) Member from Jacksonville Sheriff's Office or Jacksonville Fire and Rescue Department.

The appointees shall be confirmed by City Council.

Pursuant to Jacksonville Ordinance Code Section 84.203, the OAP Committee is responsible, in part, for (1) reviewing and assessing the City's needs with respect to opioid addiction and recovery for funding opioid programs and (2) recommending programs, grant awards, and annual lump sum appropriations for the opioid abuse program funding. However, you relate that the Project Saves Lives program is excluded from the opioid abuse-related programs that the OAP Committee recommends funding for. Although you state that River Region does not, and is not expected to, receive Project Saves Lives program funding, you indicate that, prior to the recent creation of the OAP Committee and the prospective member's anticipated appointment to same, the City has historically provided annual funding and public service grants to the nonprofit for various programs and services, including (1) substance abuse programs, (2) behavioral/mental health programs (3) services related to Juvenile and Adult Drug Court programs, and (4) services for persons with HIV through the Ryan White Care Act Title I and HOPWA federal housing grants. However, the OAP Committee does not, and will not, have any responsibility for determining funding for these various programs and services provided by River Region and will not administer any of the contracts related to their funding.⁶

Two prohibitions of the Code of Ethics for Public Officers and Employees are relevant to your inquiry. The first is Section 112.313(7)(a), Florida Statutes, which states:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.—(a) 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.

However, Section 112.313(7)(b), Florida Statutes, provides:

This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance.

Absent an exemption, Section 112.313(7)(a) would prohibit the prospective member from holding employment with the nonprofit, a business entity (defined in Section 112.312(5), Florida Statutes, to include corporations) doing business with his agency, and would prohibit the subject employee from having a contractual relationship which would create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or which would impede the full and faithful discharge of his public duties. You relate that, historically, the City Council has recurring contracts with the prospective member's employer. As explained above, the prospective member has not had (and will not have) any public duties or responsibilities with respect to these recurring contracts. As such, the prospective member's public duties are apparently unrelated to these contracts between the nonprofit and other City agencies. Therefore, where there appears to be no intersect between the prospective member's private duties and responsibilities with the nonprofit and his public duties as a prospective member of the OAP Committee, we find no prohibited conflict of interest under Section 112.313(7)(a).⁷

Further, any conflict of interest that might exist for the member under Section 112.313(7)(a) due to his employment with the nonprofit, including participating in the Project Saves Lives opioid program, would be negated by Section 112.313(7)(b), a statutory provision which negates conflicts under Section 112.313(7)(a) where a particular employment is required or permitted by law or ordinance in order for the public officer to hold his position, such as is the case here under the City's OAP Committee ordinance (Mental Health Professional). We have found that such a provision essentially works as a "waiver" of conflict "by recognizing that certain credentials are so vital to the expertise and operation of a public [committee] that the otherwise conflicting business/client connections of certain members must yield to the public purpose of a portion of the [committee's] membership possessing such professional training and practice." See, CEO 04-1 and other decisions of the Commission cited therein.

The second prohibition of the Code of Ethics that is relevant to your inquiry is Section 112.313(3), Florida Statutes, which states:

DOING BUSINESS WITH ONE'S AGENCY.—No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's 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 the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she 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 or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.

This section prohibits a public employee from acting in an official capacity as a purchasing agent to purchase, rent, or lease any realty, goods, or services for his own public agency from a business entity of which the public officer or his spouse or child holds certain ownership or leadership positions. Here, you relate the prospective member is only an employee of the nonprofit and that neither he nor his spouse or child holds certain ownership or leadership positions required to trigger the applicability of the first part of the statute. As such, we find that the first part of Section 112.313(3) is inapplicable and there is no prohibited conflict.

The second part of the statute prohibits a public officer from acting in a private capacity to sell services to his own agency or to any agency of his political subdivision. In the instant case, the prospective member does not solicit funding from the City and does not negotiate the contracts and various amendments between the nonprofit and the City. Additionally, the Commission has previously found that, when a governmental agency merely provides grants or funding to an entity (e.g., a nonprofit) that in turn provides services to a specific clientele (e.g., citizens with needs) that the governmental agency itself has no legal obligation to serve, this does not constitute the selling of services within the meaning of Section 112.313(3). CEO 18-6 and CEO 07-11. Here, were the City Council to appropriate future funding to River Region for the Project Saves Lives program, such funding would be the result of the City's policy decision to address the opioid epidemic, as the City is under no legal obligation to provide such services to citizens afflicted with opioid addiction. As such, no prohibited conflict would be created under Section 112.313(3).

Thus, under the specific circumstances of your inquiry, we find that no prohibited conflict of interest would be created were the prospective member of the City of Jacksonville's Opioid Abuse Prevention Committee to be employed by River Region Human Services, Inc. that, as a direct result of funding recommended by the member's agency, may have future contracts with the City to provide various services and programs.⁸

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 25, 2019, and RENDERED this 30th day of October, 2019.

____________________________________

Kimberly B. Rezanka, Chair

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

^[2]You relate that the City Council created the OAP Committee on March 26, 2019.

^[3]Of the remaining amount, $679,275 went to Gateway Community Services, Inc. and $86,932 went to St. Vincent's Medical Center.

^[4]You explain that, on September 24, 2019, the City Council approved the FY 2019-2010 budget that included an appropriation of $1,191,423.00 to Gateway for the Project Saves Lives program.

^[5]You indicate that the prospective member received his MAT certification from the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration in 2018.

^[6]You explain that the funding for these other programs and services is determined and administered by various agencies within the City, including the Social Services Division of the Parks and Recreation Department, Housing Division of the Neighborhoods Department, and the City Council.

^[7]The analysis provided in this paragraph addresses "ISSUE #2" as identified by the requestor in her initial submission.