CONFLICT OF INTEREST; VOTING CONFLICT; MISUSE OF POSITION; ABUSE OF POSITION

MEMBER OF BOARD OF COMMISSIONERS OF NORTH BROWARD HOSPITAL
DISTRICT PARTICIPATING IN AND VOTING ON MATTERS CONCERNING THE
DISTRICT'S ELECTRONIC HEALTH RECORDS DATABASE

To: Ray Berry, Commissioner (Board of Commissioners of North Broward Hospital District)

SUMMARY:

A prohibited conflict of interest would not exist under Section 112.313(7)(a), Florida Statutes, if a Commissioner on a hospital district board participated in discussions and decisions during board meetings regarding the selection of an electronic health records database provider for the District because, under the facts provided, he does not have an employment or contractual relationship with the District or any database vendor. Nor would a voting conflict exist under Section 112.3143, Florida Statutes, if he were to vote on the matter. Guidance concerning the applicability of Section 112.313(6), Florida Statutes, and the amendment in Article II, Section (8)(g)(2), Florida Constitution, is also provided with regard to the Commissioner's expression of his position and opinion on the matter outside board meetings. Referenced are CEO 22-3, CEO 21-1, CEO 20-7, CEO 19-23, CEO 10-14, CEO 04-17, CEO 86-24, and CEO 81-47.

QUESTION 1:

Would a prohibited conflict of interest exist under Section 112.313(7)(a), Florida Statutes, for a member of the Board of Commissioners of the North Broward Hospital District if he participates in discussions and decisions during Board meetings concerning selecting an electronic health records (EHR) database provider for the District?^[1]

Under the facts presented, Questions 1 is answered in the negative.

In your letter of inquiry, you indicate that you serve as an appointed member of the Board of Commissioners for the North Broward Hospital District ("District"). You explain that your duties as a Commissioner include Board oversight and decision-making with regard to the District's purchases, policies and operations. You indicate that the District may be issuing a bid solicitation for a new EHR database. You inquire as to whether any of the following information could create a prohibited conflict for you.

You state that your father-in-law was diagnosed with a serious ailment and received treatment for the ailment at a non-District hospital operated by the South Broward Hospital District d/b/a Memorial Healthcare System ("Memorial"). You state that your father-in-law's medical history and records were located at Memorial. Your father-in-law subsequently transferred to a District hospital. You write that Memorial and the District utilize different EHR databases to store patient records. Memorial uses an EHR database called Epic and the District hospitals use another, called Cerner.

You state that the District hospital requested your father-in-law's records from Memorial, but that the records were never transmitted. You state that the reason the records were not transmitted is because Cerner and Epic's databases do not integrate or communicate well with each other. You state that, because your father-in-law's records were never transmitted, you believe the District hospital did not obtain information in his records that might have prevented him from being mistreated. You believe that the District was partly responsible for your father-in-law's alleged mistreatment and subsequent passing. After his passing, in an effort to improve the District's sharing and receipt of records, you contacted the District's Chief Executive Officer ("CEO") and Chief Administrative Officer and stated that you would not sue the District as long as they found a way for Cerner and Epic, and any other EHR database, to communicate and transmit information between one another, and to create procedures to prevent such an occurrence from happening again. You state in an email that you told the CEO:

. . . somewhat hyperbolically, that if he accomplished this [you] would not sue the District for the death of [your] father-in-law. [You] had no real intention of suing. [Your] goal was to create a sense of urgency so that the communication of medical records between the hospitals would be achieved . . . .

In particular, you specifically state, and District's counsel agrees, that this was an informal and unwritten promise and that it is unenforceable. You state that, two years later, the databases still do not communicate well but the District is now considering replacing Cerner with Epic as its EHR database.

In your private capacity, you own and operate a company that assists hospitals with healthcare revenue cycle management, which is the process that hospitals use to track revenue. Your company works with hospitals that use Cerner, Epic and other EHR databases. One aspect of your business consists of assisting hospitals with "legacy wind down," which occurs when a hospital transitions from one EHR database to another. In a legacy wind down, your company liquidates all the accounts receivable in the client-hospital's old EHR database, thereby terminating the old EHR database. You state that you have no current contractual or financial relationships with any of these EHR database companies; nor have you had any previous contractual or financial relationships with any of these companies. You state that you are not employed by them and you have never been paid by one of the EHR database companies. It is the hospitals and healthcare systems that hire you and your company to review their revenue cycles, not the EHR database companies.

Regarding the District's decision to solicit bids for a new EHR database, you state that neither you nor your company would be financially affected regardless of which EHR database company is selected, and you also indicate that neither you nor your company have any employment or contractual relationships with any EHR database company anticipated to be involved in the EHR selection process, or with any other EHR database company. At this time, the only companies being considered by the District are Epic and Cerner.

Related to your concerns as to whether there might be a prohibited conflict of interest, Section 112.313(7)(a), Florida Statutes, provides, in relevant part:

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. . . .

The first clause of this statute prohibits a public officer or employee from having any employment or contractual relationship with a business entity or agency that is regulated by or that is doing business with his or her agency. Under the above facts, neither you nor your company is employed by the District or any EHR database company, and neither you nor your company has a contractual relationship with the District or any EHR database company. Your statement to District personnel that you would not sue the District as long as it ensured that its EHR database, and all other databases, could transmit information between each other likewise would not constitute a contractual relationship because your statement, which you admit was "somewhat hyperbolic," would be unenforceable. In light of these things, you would not have a conflict under the first clause of Section 112.313(7)(a), Florida Statutes. See CEO 86-24 ("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").

The second clause of Section 112.313(7)(a), Florida Statutes, prohibits a public officer or employee from having any employment or contractual relationship that would create a continuing or frequently occurring conflict of interest, or that would create an impediment to the full and faithful discharge of his or her public duties. In that neither you nor your business would have an employment or contractual relationship with any of the parties involved in the District's decision, or with the District itself, this part of the statute does not apply.

Question 1 is answered accordingly.

QUESTION 2:

Would a voting conflict occur if the District Commissioner participates and votes during Board meetings on selecting an electronic health records database provider for the District?

This question is answered in the negative.

You also inquire whether you would have a voting conflict under Section 112.3143, Florida Statutes, the voting conflict law, in the event the District were called upon to vote on the selection of an EHR database company. Section 112.3143, Florida Statutes, provides, in relevant part:

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 inure to the officer's special private gain or loss; which the officer 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; 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, without first disclosing the nature of his or her interest in the matter. . . . [Section 112.3143(4), Florida Statutes]

These statutory provisions indicate that a public officer would have a voting conflict if a measure would inure to his or her "special private gain or loss," ^[2] or if he or she knows that it would inure to the special private gain or loss of a principal by whom the officer was retained (or the parent organization or subsidiary of a corporate principal by which the officer was retained), a relative, or a business associate of the public officer. Under the facts presented, your voting on this matter would not financially affect you or your company. There likewise is nothing in the facts that would indicate any resultant gain or loss to a principal you have been retained by or the parent organization or subsidiary of such principal. Finally, there is nothing in the facts that indicate that a relative or business associate of yours would experience a gain or loss as a result of your voting on this issue. Thus, you would not have a voting conflict if the matter of an EHR database company were to come before the District.

With regard to your question as to whether you could participate in the discussion of the matter being voted on, Section 112.3143(4), Florida Statutes, addresses this issue. The prohibitions in this provision essentially prohibit you from participating in any matter that would inure to the special private gain or loss of you or those other individuals or entities delineated in the paragraph above, which inurement would result in a voting conflict, as discussed above. Since nothing in the facts indicates that you would have a voting conflict, there would be no prohibition from expressing your opinions at public board meetings.

Question 2 is answered accordingly.

QUESTION 3:

Would a prohibited abuse or misuse of your position occur if the District Commissioner expresses his position and opinion concerning the selection of an electronic health records database provider on District stationary, to District staff, or verbally within the community, so long as he clarifies he is voicing only his personal opinion and not the opinion of the Board?

Your question is answered as follows.

We draw your attention to the prohibitions in Article II, Section (8)(g)(2), Florida Constitution,^[3] and Section 112.313(6), Florida Statutes, which essentially operate to prohibit you from misusing or abusing your public position or the resources of your position to benefit yourself, your spouse or child, or a business with which you are affiliated. See CEO-21-1.

Article II, Section 8(g)(2), Florida Constitution, states, in relevant part:

A public officer or public employee shall not abuse his or her public position in order to obtain a disproportionate benefit for himself or herself; his or her spouse, children, or employer; or for any business with which he or she contracts; in which he or she is an officer, a partner, a director, or a proprietor; or in which he or she owns an interest. . . .

Section 112.313(6), Florida Statutes, states:

No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31.

Both of these provisions involve a public officer or public employee abusing, corruptly using, or attempting to use his or her position (or resources within his or her trust) to obtain a special privilege, benefit or exemption for himself or herself or for the parties or entities listed above. In determining whether one would be "corruptly" using or "abusing" his or her position or any resources with his or her position, one's intent becomes involved.^[4] As we have said before concerning the proper use of advisory opinions:

[I]ntent generally is determined from an examination of all relevant circumstances. We are able to do this on the basis of evidence presented through investigation and hearing when a complaint is filed, but in rendering an advisory opinion we are [subject to] a lack of access to information concerning all circumstances of the situation as well as information concerning the credibility of the individuals involved.

CEO 81-47; see also CEO 22-3, Question 3. For this reason, we can only caution you that, while the situation presented in this Question does not automatically present a prohibited conflict of interest, this is not meant to imply that a corrupt intent could not occur and a violation of the prohibitions in Article II, Section 8(g)(2), Florida Constitution, and Section 112.313(6), Florida Statutes, could not be found.^[5]

In addition, we do not typically provide guidance in response to entirely hypothetical inquiries where the facts giving rise to the potential ethical issue are not provided with particularity in the inquiry. See CEO 04-17, Question 4; CEO 10-14, note 1; and CEO 20-7, Question 2. The finding of misuse or abuse of one's position is a fact-specific analysis. As such, we decline to answer this question, inasmuch as it appears that the question is wholly hypothetical. While we understand that every question seeking guidance for prospective conduct is, to some degree, speculative, too many facts are in doubt at this time for us to render an opinion. See CEO 04-17.

Question 3 is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on September 9, 2022, and RENDERED this 14th day of September, 2022.

____________________________________

John Grant, Chair

^[1]The six questions in your inquiry have been rephrased and consolidated into three issues, as presented herein; all of the material in your questions is addressed in this opinion.