CEO 77-97 -- July 21, 1977

CONFLICT OF INTEREST

SOCIAL WORKER EMPLOYED BY H.R.S. IN SOCIAL AND ECONOMIC SERVICES PROGRAM WHOSE SPOUSE OWNS AND OPERATES PRIVATE DAY CARE CENTER

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

Prepared by: Phil Claypool

SUMMARY:

No prohibited conflict of interest under the Code of Ethics is created where the spouse of a social worker employed by the Department of Health and Rehabilitative Services in its Social and Economic Services Program owns and operates a private day care center. Section 112.313(3), F. S., is not applicable, as the employee is not a purchasing agent and because he will not be an officer, partner, director, or owner of the day care center. Neither is s. 112.313(7) applicable because, while all day care centers in the area must be licensed under the SES Program and thus are subject to the regulation of that program, the subject employee will not have an employment or contractual relationship with his spouse's day care center.

QUESTION:

Does a prohibited conflict of interest exist where the spouse of a social worker employed by the Department of Health and Rehabilitative Services in its Social and Economic Services Program owns and operates a private day care center?

Your question is answered in the negative.

In your letter of inquiry you have stated that Mr. Robert Burch and his wife are employed in the Social and Economic Services (SES) Program in the Department of Health and Rehabilitative Services (H.R.S.) District IV office. Mrs. Burch wishes to resign her position to open a private day care facility for children. Mr. Burch would remain with the SES Program.

In a telephone conversation with our staff, Mr. Burch advised that he will not own an interest in or be an officer, director, or employee of his wife's day care center. Mr. Burch also stated that he is in the Specialized Family Service Unit of the SES Program. According to him, that unit assists clients in finding housing and transportation; is responsible for family planning, counseling, and budgeting; arranges Meals on Wheels and transportation for elderly clients; and maintains records on and refers clients to Title 20 day care centers.

Mr. Burch further advises that the SES Program has day care center responsibilities in three areas. First, all day care centers in the area must be licensed by the SES Program Day Care Licensing Unit, which is not the unit in which Mr. Burch works. Secondly, a third unit of SES administers the WIN Program, which is a training and employment plan under which working clients may receive financial assistance for their day care expenses. Under the WIN program, money is paid directly to day care centers for the care of children of persons enrolled in the program. The third area of day care center responsibilities under the SES Program deals with Title 20 day care centers. These are federally funded, nonprivately owned day care centers which provide free day care for children of eligible participants. The Specialized Family Service Unit, in which Mr. Burch works, is responsible for referring clients to Title 20 day care centers and for maintaining records on these centers.

Mr. Burch states that his wife's day care center will not be a Title 20 center because it will be privately owned. In addition, he stated that he is responsible for referring eligible clients to Title 20 centers but that requests for referrals to privately owned centers are handled by the Day Care Licensing Unit, which maintains a list of all licensed centers in the area.

The Code of Ethics for Public Officers and Employees provides as follows:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his 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 his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. . . . [Section 112.313(3), F. S. 1975.]

This provision does not apply because the subject employee is not a purchasing agent and because he will not be an officer, director, or owner of the day care center; in other words, he will not be acting in his official capacity or in a private capacity under this provision.

The Code of Ethics also provides:

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.]

While all day care centers in the area must be licensed under the SES Program and thus are subject to the regulation of that program, we find that this provision does not apply because the subject employee will not have an employment or contractual relationship with his wife's day care center.

Accordingly, we find that there is not a prohibited conflict of interest where the spouse of a social worker employed by D.H.R.S. in its Social and Economic Services Program owns and operates a private day care center.