CEO 81-89 -- December 18, 1981

CONFLICT OF INTEREST

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES EMPLOYEES PROVIDING CONSULTING SERVICES TO DEPARTMENT

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

SUMMARY:

No prohibited conflict of interest would be created were an employee of the Department of Health and Rehabilitative Services, Developmental Services Program Office, District II Office, to provide consulting services to the Mental Health Program Office of the Department. The employees would not be selling services to their agency, but rather to a different agency within the Department, since their agency is found to be District II, whereas the consulting contract would be with the Mental Health Program Office. Since the grant relates to the mental health clients of the Department and has no relationship with the employees' responsibilities, which relate to the area of developmental services, there appears to be no continuing or frequently recurring conflict of interest involved in the consultation. The employees are cautioned to provide their services only on their own time, and not during their hours of employment with the Department.

QUESTION:

Would a prohibited conflict of interest be created were an employee of the Department of Health and Rehabilitative Services, Developmental Services Program Office, District II Office, to provide consulting services to the Mental Health Program Office of the Department?

Your question is answered in the negative.

In your letter of inquiry you advise that you and .... are employed as Community Services Field Representatives in the District II Office of the Department of Health and Rehabilitative Services, Developmental Services Program Office. In that position, you advise, your duties consist of licensing and monitoring developmental services contracted service providers within District II. You question whether either of you could act as a consultant under a grant funded by the central office of the Department's Mental Health Program Office. You advise that the grant is for a project entitled "Minority Awareness Training for Florida Mental Health Deinstitutionalization Program, "which is intended to facilitate the movement of the chronically mentally ill of minority classification to noninstitutional community placements. This will involve review and comment on the proposal, review of proposed facilities and programs, and the development and implementation of "skills development" workshops for program operations and staff.

The Code of Ethics for Public Officers and Employees, in Section 112.313(3), F. S., prohibits you from acting in a private capacity to sell any services to your "agency." In addition, Section 112.313(7)(a), F. S., would prohibit you from having any employment or contractual relationship with an agency which is either doing business with, or subject to the regulation of, your "agency."

The term "agency" is defined for purposes of the Code of Ethics to mean:

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university. [Section 112.312(2), F. S.]

As the Department of Health and Rehabilitative Services is not structured on the department-division-bureau model, but rather is structured by units called "offices," in previous advisory opinions we have determined an employee's "agency" by analogizing the structure of the Department to the department-division-bureau model. In CEO 78-50 and CEO 81-2, we found that a District of the Department is the equivalent of a division within other State departments. Therefore, as you are employed within the District II Office, we find that your "agency" is District II of the Department.

You propose to provide consulting services to the central office of the Mental Health Program Office of the Department in a program to be implemented throughout the State. In previous opinions CEO 78-50, 80-1, and 80-76 we found that offices directly supervised by an Assistant Secretary of the Department, such as the Mental Health Program Office, are analogous to divisions of other State departments. Under this interpretation, it is apparent that you would not be selling your services to your "agency," but rather to a different "agency" within the Department. Nor does it appear here that the Mental Health Program Office either is doing business with or is subject to the regulation of District II, your "agency."

Section 112.313(7)(a), F. S., also prohibits a public employee from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. We are of the opinion that so long as your consulting services are provided on your own time, such as during weekends or vacation periods, and not during the hours of your employment, this provision would not prohibit the consultation which you propose. In particular, we note that the grant, which relates to the deinstitutionalization of mental health clients of the Department, has no relationship with your duties and responsibilities as Community Services Field Representatives in the area of developmental services, since developmentally disabled persons include those affected by retardation, cerebral palsy, epilepsy, and autism. Section 20.19(3)(c)2d, F. S. (Supp. 1980).

Accordingly, we find that so long as your consulting activities would not be performed during the hours of your employment with the Department, no prohibited conflict of interest would be created were you to contract as a consultant under a grant funded by the Mental Health Program Office of the Department of Health and Rehabilitative Services. In addition, we would caution you that the use of public materials and equipment, such as office supplies and telephones, for your private benefit in consulting activities would be prohibited by Section 112.313(6), F. S.