CEO 19-21—October 30, 2019
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)
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 has a contract with the City to provide opioid related services or that, as a direct result of recommendations from the member's agency regarding funding awards, may have a contract with the City to provide opioid services in the future. 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
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 private, nonprofit corporation that has a contract with the City to provide opioid related services?
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 Dr. Raymond Pomm, a prospective member of the newly-created City of Jacksonville's Opioid Abuse Prevention (OAP) Committee. You relate that, in his private capacity, Dr. Pomm (the prospective member) is employed as the Chief Medical Officer for Gateway Community Services, Inc. (Gateway), 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, Gateway (the nonprofit). 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. Thereafter, you explain that City Council extended the treatment series component of the program and designated the nonprofit as the provider of treatment services.3 Most recently,4 you relate that since the City Council approved $1,191,423.00 in additional funding to the nonprofit, the City has effectively entered into a new contract5 with the member's private employer for the 2019-2020 fiscal year (FY 2019-2020), effective October 1, 2019-September 30, 2020.
As it relates to his private capacity employment with Gateway, in addition to being certified by the American Board of Addiction Medicine, the prospective member is board certified in Psychiatry, Neurology, and Addiction Psychiatry and specializes in treating those with addiction. You also relate that the prospective member oversees all medical services provided to the nonprofit and interfaces with all clinical services provided by the nonprofit, including the Project Saves Lives opioid program. As part of the program coordinated with Gateway and various local hospital Emergency Departments, the prospective member also oversees and supervises the nonprofit employees that intersect with patients. In so doing, you explain that one-third (1/2) of the prospective member's salary is paid by funding from the Project Saves Lives program. Additionally, upon request by City representatives, the prospective member provides information and explanation of data related to the utilization and effectiveness of the program. Nevertheless, you relate that the prospective member is not personally involved in obtaining Project Saves Lives program funding (or any other funding) for the nonprofit from the City. Based upon the prospective member's professional qualifications and experience in treating opioid addiction, you explain that he was recently nominated6 by the Mayor of the City of Jacksonville to serve as the designated Medical Professional, Program Treatment 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. Specifically, you explain that the Project Saves Lives funding is recommended to City Council by the Mayor as part of the City's annual budget and that the City Council will either approve or deny the recommended funding. In addition to the Project Saves Lives funding, you indicate that the City has provided additional funding and public service grants to the nonprofit for various programs and services, including (1) alcohol rehabilitation programs, (2) substance abuse programs, (3) behavioral/mental health programs, (4) services for persons with HIV through the Ryan White Care Act Title I and HOPWA federal housing grants, and (5) an emergency shelter grant. However, in addition to not having any involvement in, or oversight over, the additional funding and/or contracts for the Project Saves Lives opioid program, the OAP Committee does not, and will not, have any responsibility for determining funding for these various programs and services and will not administer any of the contracts related to their funding.7
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, in addition to a one-time $75,000 recent appropriation from City Council to the prospective member's private employer, historically, 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).8
Further, any conflict of interest that might exist for the prospective member under the first part of 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 (Medical Professional, Program Treatment). 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 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, Gateway receives funding from the City Council which assists the nonprofit in providing services for the Project Saves Lives opioid program to persons who—despite benefiting from the City's policy decision to address the opioid epidemic—the City is under no legal obligation to provide such services. 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 the nonprofit that currently has a contract with the City to provide opioid related services to citizens with opioid addictions.
Question 1 is answered accordingly.
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 result of recommendations from the member's agency regarding funding awards, may have a contract with the City to provide opioid services in the future?
Under the circumstances, Question 2 is answered in the negative.
Based upon the discussion in Question 1, above, Section 112.313(3) also is inapplicable in this instance. However, as discussed above, absent an exemption, the first part of Section 112.313(7)(a) would prohibit the prospective member from holding employment with the nonprofit, a business entity doing business with his agency. Nevertheless, as explained above, any conflict of interest that might exist for the prospective member under Section 112.313(7)(a) due to his employment with the nonprofit, including future contracts between the nonprofit and the City resulting from funding awards recommended by the OAP Committee, would be negated by Section 112.313(7)(b), under the specific facts and circumstances of this inquiry.9
Question 2 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
 Prior opinions of the Commission on Ethics can be viewed at www.ethics.state.fl.us.
You relate that the City Council created the OAP Committee on March 26, 2019.
As part of this extension, the nonprofit and the City executed at least three (3) amendments to the existing contract for services, appropriating $1,249,945.00 to the nonprofit to participate in the program and for medication costs through September 30, 2018.
You relate that the City Council voted to approve the proposed budget on September 24, 2019.
You explain that the new contract will be an amendment to the original contract with the new appropriation amount for Gateway and the new term of the contract.
You relate that the prospective member was nominated on May 28, 2019.
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 Public Service Grant Council and City Council.
The analysis provided in this paragraph addresses "ISSUE #2" as identified by the requestor in her initial submission.
However, as a member of the OAP Committee, to the extent that the member is presented with measures/matters that would affect his private-capacity employer, he is subject to the voting/participation conflicts law of Sections 112.3143(3)(a) and 112.3143(4), Florida Statutes, which provide:
Voting conflicts.—No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her 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. [Section 112.3143(3)(a), Florida Statutes].
No appointed public officer shall participate in any matter which would insure to the officer's special private gain or loss; which the officer knows would insure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained; or which he or she knows would insure to the special private gain or loss of a relative or business associate of the public officer, without first disclosing the nature of his or her interest in the mater. [Section 112.3143(4), Florida Statutes].
And, see CE Form 8B at www.ethics.state.fl.us (found within the "Forms" tab that is located near the bottom left-hand side of the webpage).