CEO 79-4 -- January 18, 1979

CONFLICT OF INTEREST

DISTRICT NURSING HOME OMBUDSMAN COMMITTEE MEMBER CONTRACTING WITH NURSING HOME AS A PHARMACIST

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

Prepared by: Phil Claypool

SUMMARY:

A public officer is prohibited from being employed by or having a contractual relationship with a business entity subject to the regulation of his agency. Section 112.313(7)(a), F. S. 1977. A member of a district nursing home ombudsman committee who is a licensed pharmacist therefore seemingly is prohibited from serving as president of a pharmaceutical company which contracts with a nursing home in the district and from consulting with that nursing home. However, s. 400.307(3), F. S. (1978 Supp.), relating to the composition of the nursing home ombudsman committees, specifically provides: "Except for the nursing home administrator, pharmacist, and nurse, each member of the committees shall certify to having no association with a nursing home facility for reward or profit." This language, in its specificity, is deemed to control over s. 112.313(7)(a), the general prohibition against conflicting business transactions. Accordingly, no conflict of interest is created if a registered pharmacist who serves as a member of a district nursing home ombudsman committee is president of a pharmaceutical company which contracts with a nursing home in the district for the sale of pharmacy items, and if said committee member performs consulting services for the nursing home.

QUESTION:

Does a prohibited conflict of interest exist when a pharmacist who is the president of a pharmaceutical company which contracts with a nursing home to sell pharmacy items and who consults with the nursing home is a member of the district nursing home ombudsman committee which oversees the nursing home?

Your question is answered in the negative.

In your letter of inquiry you advise that ____ is a licensed pharmacist who is the president and chief pharmacist of and a shareholder in a corporation which is engaged in the performance of pharmaceutical services. You also advise that this company has a contractual relationship with a local nursing home facility to furnish physician-prescribed pharmacy items to the patients of the nursing home, with the patient directly paying the charges for the items to the company. In addition, you advise, ____ individually performs consulting services for the nursing home.

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. 1977.]

This provision prohibits a public officer from being employed by or having a contractual relationship with a business entity which is subject to the regulation of his agency. A district nursing home ombudsman committee has substantial regulatory authority over nursing homes within its district, including the authority to discover, investigate, and determine the existence of abuse and neglect in any nursing home, to resolve complaints made by nursing home residents, and to enter any nursing home with or without prior notice pursuant to an investigation to obtain information. Section 400.307(2), F. S. (1978 Supp.). Therefore, a member of a district nursing home ombudsman committee seemingly is prohibited from being employed by or having a contractual relationship with a nursing home within his district.

However, s. 400.307(3), F. S. (1978 Supp.), provides:

Each district ombudsman committee shall be composed of 12 members appointed by the Governor from the district, to include the following: One medical doctor whose practice includes a substantial number of geriatric patients; one registered nurse; one nursing home administrator; one licensed pharmacist; one dietitian; five nursing home residents or representative consumer advocates for nursing home residents; one attorney; and one professional social worker. The Governor shall elicit nominations from related professional organizations. Except for the nursing home administrator, pharmacist, and nurse, each member of the committee shall certify to having no association with a nursing home facility for reward or profit.

It is apparent from this provision that the Legislature specifically intended that no member of a nursing home committee should be associated with a nursing home in any manner for profit, with the express exceptions of one nursing home administrator, one nurse, and one licensed pharmacist. Presumably, these positions were exempted in order to guarantee that each committee possesses the necessary expertise to perform its responsibilities effectively.

In a telephone conversation with our staff, the Governor's appointments office confirmed that the subject committee member was appointed as the necessary pharmacist on the committee. Therefore, under s. 400.307(3) he is specifically allowed to do business with a nursing home while serving on the committee. The language of this section, in its specificity, must control over s. 112.313(7)(a), above, which is only a general prohibition against conflicting business transactions. See 82 C.J.S. Statutes s. 34(b) (1953) and CEO 76-2, finding that s. 136.02(5), F. S., controls over s. 112.313(3), for the same reason.

Accordingly, we find that the Code of Ethics does not prohibit the subject district nursing home ombudsman committee member from either serving as the president of a pharmaceutical company which contracts with a nursing home within the district or from consulting with that nursing home.