CEO 81-23 -- April 2, 1981

CONFLICT OF INTEREST

EXECUTIVE DIRECTOR OF STATE BOARD OF DENTISTRY OWNING DENTAL LABORATORY

To: H. Fred Varn, Executive Director, Board of Dentistry, Department of Professional Regulation, Tallahassee

SUMMARY:

Section 112.313(7)(a), F. S., prohibits a public employee from having a contractual relationship with a business entity which is subject to the regulation of his public agency and further prohibits him from having 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 those duties. Dental laboratories are not regulated by the Board of Dentistry, the "agency" of the Board's executive director. However, dentists clearly are regulated by the Board, and the business of a dental laboratory is strictly dependent upon dentists. Thus, the subject executive director would be placed in the position of having continuing business relationships with persons who are regulated by his public agency were he to own one or more dental laboratories. In this situation, the ownership of a dental laboratory would create a continuing or frequently recurring conflict of interest and would impede the full and faithful discharge of public duties.

QUESTION:

Would a prohibited conflict of interest be created were you, the Executive Director of the Florida Board of Dentistry, to own, invest in, or be a partner in one or more dental laboratories in the State?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you are employed by the Department of Professional Regulation as the Executive Director of the Board of Dentistry and of the Board of Opticianry. Although the Board of Dentistry licenses and regulates dentists under Chapter 466, F. S., dental laboratories are registered and regulated by the Department under Sections 466.031-466.038, rather than by the Board of Dentistry. In a telephone conversation with our staff, you advised that occasionally dental laboratories have come before the Board of Dentistry when they have engaged in the unauthorized practice of dentistry through the making and fitting of dentures without the involvement of a licensed dentist. You question whether you may invest in a dental laboratory or a chain of dental laboratories in the State without being active in the day-to-day affairs of the laboratory.

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.]

In our view, this provision prohibits public employees who participate in regulatory matters from transacting business with persons who have interests that fall within that regulatory authority, even though the business transacted may not be subject to that regulatory authority. Dental laboratories are not regulated by the Board of Dentistry, which is your "agency" as that term is defined in Section 112.312(2), F. S. See CEO 79-78. Regulation of dental laboratories is handled by the Department of Professional Regulation, which is a different "agency" for purposes of applying the provisions of the Code of Ethics. The fact that some dental laboratories may engage in the unauthorized practice of dentistry and therefore may come within the purview of the Board of Dentistry does not imply that dental laboratories are regulated by the Board any more than the fact that some citizens engage in unauthorized practice of dentistry implies that all citizens are subject to the regulation of the Board.

Nevertheless, it is clear that the business of any dental laboratory is strictly dependent on dentists, persons who are regulated by the Board of Dentistry. For example, Section 466.021, F. S., requires dentists to provide dental laboratories with a written work order on a form approved by the Department whenever work is to be done by the laboratory for the dentist; the dentist is required to maintain a file of these work orders in his office, failing which the dentist may be suspended from practice or his license may be revoked.

In our opinion, your ownership of a dental laboratory would place you in the position of having continuing business relationships with persons who are regulated by your public agency. When the interests of those persons come before the Board, you would be presented with a clear conflict of interest, a situation in which regard for your private interest in the profitability of the laboratory would tend to lead to disregard of your public duty to see that dentists are regulated in the best interests of the public. Moreover, we perceive that your ownership of one or more dental laboratories may result in the appearance of an implicit use of your public position to solicit or to retain business from dentists, despite your statement that you would only be an investor in the laboratories. Thus, we are of the opinion that your ownership of a dental laboratory would create a continuing or frequently recurring conflict of interest and would impede the full and faithful discharge of your public duties.

Accordingly, we find that a prohibited conflict of interest would be created for you to own, invest in, or be a partner in one or more dental laboratories in the State.