CEO 80-5 -- January 17, 1980

CONFLICT OF INTEREST

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES MENTAL HEALTH REHABILITATIVE SERVICES DIRECTOR SERVING ON SCHOOL BOARD

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

Prepared by: Phil Claypool

SUMMARY:

No prohibited conflict of interest would be created were the mental health rehabilitative services director of a state hospital to serve as a member of the school board of the county within which the hospital is located. Although s. 112.313(7)(a), F. S., prohibits a public officer or employee from being employed by an agency which is either doing business with or subject to the regulation of his public agency, it is apparent that, as a school board member, the petitioner would not be employed by an agency (Department of Health and Rehabilitative Services) which is subject to the regulation of the school board, or vice versa. Nor would he be employed by an agency which is doing business with the school board, inasmuch as an agreement between the school board and D.H.R.S. regarding academic instruction within the hospital does not constitute "doing business" for purposes of the Code of Ethics. See CEO 76-2, Question 9. Although s. 112.313(7)(a) also prohibits a public officer from having employment which 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, the instant situation is not deemed to be one which could be used for private gain or which would impede the petitioner's service as a school board member.

QUESTION:

Would a prohibited conflict of interest be created were I, the Mental Health Rehabilitative Services Director at the Florida State Hospital at Chattahoochee, to serve as a member of the Gadsden County School Board?

Your question is answered in the negative.

In your letter of inquiry you advise that you are employed by the Department of Health and Rehabilitative Services (D.H.R.S.) as Mental Health Rehabilitative Services Director at the Florida State Hospital at Chattahoochee. You question whether you could serve as a member of the School Board of Gadsden County while continuing your employment with the department.

As a part of the educational services furnished to certain patients of the hospital, you advise, academic instruction is provided by six teachers who are furnished and paid by the Gadsden County School Board with which they are under contract. The work of these teachers is supervised and directed by an academic principal II who is employed by the department and is under your supervision. In addition, you advise that, beginning with the 1980-1981 fiscal year, the school board will be legally responsible for the education of school-aged clients at the hospital, pursuant to a written agreement to be made between the school board and the department.

You have no contractual relationship with the school board and have not been employed by that agency, you write. The school board does not designate your duties or supervise your performance, and it has no authority to suspend or terminate your employment. As an employee of the department, your immediate supervisor also is an employee of the department and not of the school board.

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, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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 officer or employee from being employed by an agency which either is doing business with or is subject to the regulation of his agency. Under the circumstances you have described, it is apparent that if you were to serve as a member of the school board you would not be employed by an agency (D.H.R.S.) which is subject to the regulation of your agency (the school board). Nor would you be employed by an agency which is doing business with the school board inasmuch as the agreement between the school board and the department regarding academic instruction within the hospital does not constitute "doing business" for purposes of the Code of Ethics. See CEO 76-2, Question 9, in which we advised that s. 112.313(7) is not to be employed to restrict that business which is transacted between governmental entities but to prohibit private gain other than remuneration provided by law.

Section 112.313(7)(a), F. S., also prohibits a public officer from having any employment which 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. In this respect we note that your position with the department requires that you supervise the person who, in turn, supervises the teachers employed by the school district to teach at the hospital. In our opinion, however, this is not a situation which could be used for private gain or which would impede your service as a school board member.

Accordingly, we find that no prohibited conflict of interest would be created were you, the Mental Health Rehabilitative Services Director at the Florida State Hospital at Chattahoochee, to serve as a member of the Gadsden County School Board.