CEO 76-41 -- February 13, 1976

CONFLICT OF INTEREST

LEGISLATIVE REPRESENTATIVE FOR PROFESSIONAL ASSOCIATION SERVING AS SECRETARY TO STATE BOARD REGULATING THE PROFESSION

To: Dorothy W. Glisson, Secretary, Department of Professional and Occupational Regulation, Tallahassee

Prepared by: Bonnie Johnson

SUMMARY:

The State Board of Osteopathic Medical Examiners is charged with the duty to examine and license osteopaths; to determine the good standing and reputability of osteopathic schools, colleges, and hospitals; and to investigate alleged violations of any laws relating to the practice of osteopathic medicine in the state. The Florida Osteopathic Medical Association, on the other hand, is a private professional organization whose purpose is to promote the welfare of osteopathic medicine in the state. Were the Osteopathic Board to employ as its executive secretary one who serves in a private capacity as the legislative representative of the Osteopathic Association, such employment would create a continuing or frequently recurring conflict between private interest and public duty as prohibited by Fla. Stat. s. 112.313(7) (1975).

QUESTION:

Would a prohibited conflict of interest be created were the Florida Board of Osteopathic Medical Examiners to employ on a part-time basis as its executive secretary one who is privately employed part-time as the legislative representative for the Florida Osteopathic Medical Association?

Your question is answered in the affirmative.

You inform us in your letter of inquiry that "[t]he Board of Osteopathic Medical Examiners is a state agency composed of six members appointed by the Governor whose primary responsibility is protection of the public." The board is charged with the duty to examine and license osteopaths; to determine the good standing and reputability of osteopathic schools, colleges, and hospitals; and to investigate and resolve alleged violations of any laws relating to the practice of osteopathic medicine in the state. See Ch. 459, F. S. The Florida Osteopathic Medical Association, on the other hand, "is a private professional corporation composed of voluntary dues- paying members of the profession," whose purpose is "to promote the public health and welfare of the people of the State of Florida and to promote the welfare of osteopathic medicine and surgery in said State . . . ." The association's objectives include the promotion of "the welfare and interests" of the profession and the maintenance and advance of "the highest possible standards of osteopathic medical education, practice, and research."

The duties of the executive secretary for the Board of Osteopathic Medical Examiners, as set forth in the job's position description with which you provided us, include the coordination of all administrative and management services under board policy and instruction, including the coordination of plans for board actions, meetings, examinations, and administrative hearings. The executive secretary is further charged with the duty to administer and enforce laws, rules, and regulations of the State of Florida relating to the practice of osteopathic medicine, including administration of foreign licensure programs and provisions of the Uniform Complaint Law. This part-time position also involves the approval of continuing education credits; the representation of the board before state agencies, legislative committees, etc.; and assistance to the board in drafting legislation, rules, and regulations. As legislative representative for the Florida Osteopathic Medical Association, the subject applicant's private responsibilities include communicating "to the Association the contents and progress of proposed and recently enacted legislative and administrative changes relating to or influencing health care and its regulation," as well as communicating "to the appropriate state officials the Association's recommendations pertinent to any proposed changes in the health care delivery system."

The Code of Ethics for Public Officers and Employees provides in relevant part:

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 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 supplied; Fla. Stat. s. 112.313(7)(1975).]

The Board of Osteopathic Medical Examiners regulates osteopaths in the state but has no regulatory authority over professional associations. In our view, however, a conflict of interest would be created by the proposed dual employment pursuant to the italicized language in the above-quoted provision.

In his public capacity as executive secretary to the board, the subject applicant would have responsibilities directed toward protection of the public interest in the area of osteopathic medicine. Although policy-making decisions ultimately rest with the board members, the broad administrative and enforcement authority delegated to the executive secretary places him in a highly influential position. Whereas his primary responsibility in his private work for the association is to promote the osteopathic profession, his principal public duty is to promote regulation of the profession which would be in the best interests of citizens of the state. In many instances the aims of the board and the association doubtless will be identical or, at least, compatible. We can foresee many instances, however, in which the interests of the two will be opposed. Legislative recommendations, for example, arise from two entirely separate concerns; yet the secretary/representative would be responsible for promoting both. Similarly, were an osteopath to be investigated or disciplined by the board, the secretary/representative would be faced with divided interests.

In enacting the Code of Ethics for Public Officers and Employees, the Legislature declared in its statement of intent that "[i]t is essential to the proper conduct and operation of government that public officials be independent and impartial . . . ." We feel that such impartiality would be severely threatened in the proposed dual employment situation. Were the Board of Osteopathic Medical Examiners to employ as its executive secretary the legislative representative of the Florida Osteopathic Medical Association, such employment would 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" as prohibited by Fla. Stat. s. 112.313(7)(1975).