CEO 80-32 -- May 21, 1980

CONFLICT OF INTEREST

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES DISTRICT MENTAL HEALTH PROGRAM SUPERVISOR SERVING AS PRESIDENT OF NONPROFIT MENTAL HEALTH INSTITUTE

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(7), F. S., prohibits a public employee from having employment with a business entity which is regulated by or doing business with his agency; it also prohibits a public employee from having employment that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties. When a district mental health program supervisor for the Department of Health and Rehabilitative Services is compensated for his service as president of a nonprofit mental health institute, he is deemed to be employed by the institute. However, the above-cited provision of the Code of Ethics is not violated by such service because the institute is not licensed by the department and has no connection with the district's mental health program. Accordingly, so long as the time spent on his work for the institute does not interfere with his responsibilities to the department, no prohibited conflict of interest is created in the D.H.R.S. employee's serving as the institute's president.

QUESTION:

Does a prohibited conflict of interest exist when I, a district mental health program supervisor for the Department of Health and Rehabilitative Services, privately serve as president of a nonprofit mental health institute which receives no funding from the local mental health board?

Your question is answered in the negative.

In your letter of inquiry you advise that presently you are employed by the Department of Health and Rehabilitative Services as mental health program supervisor for district ____. You also advise that privately you are president of a nonprofit mental health institute which offers the following services to the private sector of the community: psychiatric and psychological diagnostic evaluation, individual and group psychotherapy, family therapy, marriage counseling, case consultation, and continuing education through the master lecture series in mental health. The purpose of the institute, you advise, is to prevent mental illness and to treat the emotionally disturbed. You further advise that the institute will be supported from private patient fees and third-party payments, with no funding requested from the local mental health board, which is funded by the state and county.

In a telephone conversation with our staff, you advised that your work for the institute, for which work you are compensated, includes both administration and clinical practice, as the institute provides outpatient mental services. The institute is funded by fees from patients as well as by third-party payments, which include insurance, Medicare, and Medicaid funds. The institute receives no other funding, you advised, through grants or otherwise; specifically, it is not a service provider through the local mental health board. In addition, you advised that the institute is not licensed by the department and has no connection with the mental health program in your district.

As mental health program supervisor for the department, you advise that your work includes liaison, consultation, and evaluation of the local mental health board, through which the department has allocated funds for the support of the community mental health program. In turn, the mental health board seeks service providers and enters into subagreements with them. Finally, you advise that the institute would not accept any referral patients from service providers and also would not accept outpatients from the South Florida State Hospital, which is located within the district.

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.]

This provision prohibits a public employee from having employment with a business entity which is regulated by or doing business with his agency; it also prohibits a public employee from having any employment that would create a continuing or frequently recurring conflict between his private interests and the performance of his public duties. In a previous advisory opinion, CEO 77-16, we found that this provision did not prohibit an employee of the Department of Health and Rehabilitative Services from serving without compensation on the board of directors of a nonprofit mental health organization which was receiving funding from the department as a service provider. In that opinion, we found that the employee was not employed by the mental health organization, since she received no compensation for services rendered to the organization. Similarly, in CEO 77-21, we found that a member of a district advisory council to the department could serve on the board of directors and as treasurer of a nonprofit mental health corporation funded by the department because the advisory council member received no compensation for his services to the corporation.

The situation you have presented is the opposite of that presented in these previous advisory opinions. Clearly you are employed by the institute, as you provide administrative and professional services to the institute in return for compensation. On the other hand, unlike the mental health organizations referenced in the previous opinions, the institute which employs you receives no funding from the Department of Health and Rehabilitative Services. In addition, the institute is not licensed by the department, nor does it have any connection with the district's mental health program.

Accordingly, so long as your work for the institute is not done while "on duty," which we note from your position description is not necessarily limited to a 40-hour week, we find that no prohibited conflict of interest is created when you serve as president of a nonprofit mental health institute which does not receive funds from the Department of Health and Rehabilitative Services.