CEO 80-46 -- June 18, 1980

CONFLICT OF INTEREST

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES EMPLOYEE SERVING AS PRESIDENT OF NONPROFIT ORGANIZATION PROVIDING SERVICES TO DEPARTMENT

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

Prepared by: Phil Claypool

SUMMARY:

No prohibited conflict of interest exists when an employee of the Department of Health and Rehabilitative Services, Vocational Rehabilitation Program Office, is the president of a nonprofit organization providing services to the department, although the employee receives travel expenses and per diem for helping to provide those services under the agreement between the department and the organization. Section 112.313(3), F. S., prohibits a public employee from acting in a private capacity to sell any services to his own agency and prohibits a public employee from acting in an official capacity as a purchasing agent to purchase services for his agency from a business entity of which he is an officer. In the instant case, however, the program office is not purchasing services from the organization or from the subject employee, and the organization and the employee are not selling any services to the program office. Neither is s. 112.313(7)(a) violated inasmuch as noncompensated service as an officer of a nonprofit corporation has been deemed not to constitute an employment or contractual relationship. See CEO's 77-16 and 77-21. Reference also is made to CEO 80-41, in which it was found that the receipt of reimbursement for travel expenses does not constitute compensation for purposes of ethics in government.

QUESTION:

Does a prohibited conflict of interest exist when an employee of the Department of Health and Rehabilitative Services, Vocational Rehabilitation Program Office, is the president of a nonprofit organization providing services to the department if the employee receives travel expenses and per diem for helping to provide those services under the agreement between the department and the organization?

Your question is answered in the negative.

In your letter of inquiry you advise that ____ currently is employed by the Department of Health and Rehabilitative Services (D.H.R.S.) as an interpreter for the deaf and that she is president of the Florida Registry of Interpreters for the Deaf, Inc. (FRID). You also advise that the Vocational Rehabilitation Program Office of D.H.R.S. is involved in efforts to identify available interpreters for the deaf as a result of the requirements of federal law regarding accessibility of programs and services to the handicapped. As many rehabilitation services and deaf client situations require competent interpreters for the deaf to ensure effective and appropriate communication, the Vocational Rehabilitation Program Office and FRID have developed an Interpreter Quality Assurance Screening Model which, when implemented, will provide the department with skill-level indicators for interpreters for the deaf and will allow for progressive screening of the changing skill level of interpreters. Thus, the department will be able to provide interpreters who have the degree of skill appropriate for the situation in which they are needed. Florida Registry of Interpreters for the Deaf, Inc. was chosen specifically for this effort, you advise, because it is the only professional organization in Florida knowledgeable in the area of interpreter services.

In addition, you advise that FRID has agreed with the Vocational Rehabilitation Program Office to implement the screening program by establishing a team of qualified interpreters to visit selected areas of the state for the purpose of screening and identifying applicants' levels of interpreting skill. In return, the program office has agreed to provide necessary materials and supplies, to provide assistance in notifying applicants and setting up screening sites, and to reimburse members of the screening team directly for their travel and per diem through a federally funded project in the Vocational Rehabilitation Program Office.

In a telephone conversation with our staff, ____, Administrator of Consultative Services for the Vocational Rehabilitation Program Office, advised that FRID is a nonprofit organization and that the subject employee receives no compensation for her voluntary service as president of the organization. He also advised that travel expenses and per diem would be paid pursuant to s. 112.061(2)(e)2., F. S., which permits a state agency to pay per diem and travel expenses for a "person who is called upon by an agency to contribute time and services as a consultant or adviser."

The Code of Ethics for Public Officers and Employees provides:

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. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), F. S.]

This provision prohibits a public employee from acting in a private capacity to sell any services to his own agency and prohibits a public employee from acting in an official capacity as a purchasing agent to purchase services for his agency from a business entity of which he is an officer.

We are of the opinion that the provisions of s. 112.313(3), F. S., do not prohibit the situation you have described since the Vocational Rehabilitation Program Office is not purchasing services from FRID or the subject employee, and FRID and the subject employee are not selling any services to the program office. The subject employee and the other members of the screening team are not consultants receiving compensation for their work. See CEO 80-41, in which we found that the receipt of reimbursement for travel expenses does not constitute "compensation" for purposes of the Sunshine Amendment, s. 8(e), Art. II, State Const. In effect, the subject employee and others are donating their time by voluntarily assisting the department rather than selling their services to the department. See also CEO 79-75, in which we found no violation of s. 112.313(3) by a city mayor receiving per diem and travel allowances for acting as temporary city administrator.

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.]

This provision prohibits a public employee from being employed by or having a contractual relationship with a business entity which is doing business with his agency. However, under the circumstances you have presented, it does not appear that the subject employee is employed by or has a contractual relationship with the nonprofit organization. As we have advised in previous opinions, noncompensated service as an officer of a nonprofit corporation does not constitute an employment or contractual relationship. See CEO's 77-16 and 77-21.

Accordingly, we find that no prohibited conflict of interest exists when the subject employee of the Department of Health and Rehabilitative Services is the president of a nonprofit organization providing services to the department if the employee receives travel expenses and per diem for helping to provide those services under the agreement between the department and the organization.