CEO 77-74 -- May 19, 1977

CONFLICT OF INTEREST

MEDICAL DISABILITY EXAMINER WITH DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES DOING PRIVATE CONSULTIVE COUNSELING AFTER WORKING HOURS

To: (Name withheld at the person's request.)

Prepared by: Phil Claypool

SUMMARY:

A public employee is prohibited by s. 112.313(7)(a), F. S. 1975, from having a 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. Generally, no prohibited conflict would be created were a medical disability examiner with the Department of Health and Rehabilitative Services to engage after working hours in private vocational, occupational, education, marriage, and family counseling. However, such counseling would conflict with public duty were the subject employee to counsel a client who has applied for Social Security disability benefits in the past, as such application may be adjudicated by the Office of Disability Determinations (O.D.D.), the employee's agency; who has an application pending before the O.D.D.; or whose situation is such that he seems likely to apply for Social Security benefits. In all three cases, the employee's impartiality in the discharge of public duty potentially is threatened, and there is the possibility of use of public position to obtain private benefit other than the remuneration provided by law. See ss. 112.311(1) and 112.313(8), F. S. 1975.

QUESTION:

Would a prohibited conflict of interest be created were I, a medical disability examiner with the Department of Health and Rehabilitative Services, after my working hours to engage in private vocational, occupational, educational, marriage, and family counseling?

Your question is answered in the negative, subject to certain conditions which are specified below.

In your letter of inquiry and subsequent materials you have stated that you are presently employed as a Medical Disability Examiner with the Office of Disability Determinations (O.D.D.) and that the O.D.D., operating under the provisions of a state-federal contract, makes disability determinations on claims for disability insurance benefits under the Social Security Act. Social security offices, having assisted a claimant in completing the necessary application forms, submit the application to the O.D.D. for a disability determination; after rendering the determination, the O.D.D. then returns the claim file to the Social Security Administration. The O.D.D. presently receives housing and other administrative support from the Department of Health and Rehabilitative Services, although the state is reimbursed for all expenses by the federal government.

According to information you have provided us, the duties of a medical disability examiner generally involve collecting, developing, and reviewing medical evidence as to the extent of a claimant's particular medical or psychiatric impairment and adjudicating the claimant's Social Security disability claim. In doing so, the examiner reviews the medical information relating to a claimant in order to determine whether the extent or seriousness of his medical or psychological impairment meets the standards of the Social Security Administration. If the medical evidence does not establish that these standards have been met, although the disability may still reduce the claimant's residual functional capacity to work, then the examiner must evaluate the claimant's age, education, and vocation- occupational background and determine according to published guidelines whether the claimant is entitled to some Social Security benefits. In all cases, the examiner must have his determination countersigned by one of the physicians on the staff and, when appropriate, he consults with staff vocational specialists.

After your regular working hours, you wish to engage in private consultative counseling, to include vocational, educational and occupational achievement, and aptitude testing and evaluation as well as marriage and family counseling. As part of your private endeavor, you anticipate that you may be involved in evaluating the extent of a client's possible medical or psychiatric impairment or disability and in guiding a client to appropriate social and other supportive agencies as well as in supportive counseling. You also indicate that you are seeking this opinion because some of your private clients may be engaged in applying for Social Security disability benefits or may be interested in applying for those benefits in the future.

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

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. [Section 112.313(7)(a), F. S. 1975.]

This provision prohibits a public employee from having a 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.

Generally speaking, we do not perceive that the contractual relationship you will have with each of your private clients would impede the full and faithful discharge of your public duties as a medical disability examiner, assuming that you do not counsel clients during your regular working hours. However, we do foresee three situations in which your relationship with a client would create a frequently recurring conflict or a conflict that would impede the full and faithful discharge of your public duties.

The first of these situations would arise should you undertake to counsel a client who has applied for Social Security disability benefits in the past. Whether the client is receiving those benefits or not, there exist the possibilities that the client's application may be reconsidered or that the question of whether his disability is continuing would have to be adjudicated by the O.D.D. In addition, were you to accept a client who had previously applied to the O.D.D. for benefits, it might appear that you had used your public position to obtain that client and therefore that you had used your public position for private gain other than the remuneration provided by law. See s. 112.311(1), F. S. 1975. The second, and most obvious, situation which would create a conflict would arise should you undertake to privately counsel a client who has an application pending with the O.D.D. The third situation in which we foresee a conflict would arise should you undertake to counsel a client whose situation is such that he seems likely to apply for Social Security benefits. In this situation there exists the possibility that you might prejudge a case which you would later be required to adjudicate, thus failing to remain independent and impartial in the discharge of your public duty. See s. 112.311(1), F. S. 1975. Although it may be possible for you to disqualify yourself from adjudicating such a claim, we do not approve of this alternative. As a public employee, you have an affirmative duty to avoid involvement in matters which foreseeably would give rise to a conflict of interest; your public duties must come first and those duties include adjudicating claims which have been assigned to you. Nor do we feel that you may accept a private client who seems likely to apply for Social Security disability benefits with the expectation that someone else in the O.D.D. could adjudicate the claim, because of the possible appearance that you could influence a decision being made by your agency.

Accordingly, subject to the three exceptions we have outlined above, we find that the Code of Ethics for Public Officers and Employees does not prohibit you from engaging in private vocational, occupational, educational, marriage, and family counseling after your working hours as a medical disability examiner.