CEO 83-51 -- July 28, 1983

CONFLICT OF INTEREST

PUBLIC DEFENDER'S OFFICE CONTRACTING WITH D.H.R.S. TO PROVIDE SERVICES TO JUVENILES

To: Mr. John H. Keane, Public Defender, Sixteenth Judicial Circuit

SUMMARY:

No prohibited conflict of interest would be created under the Code of Ethics were a public defender's office to contract with the Department of Health and Rehabilitative Services to operate a program providing counseling and other services for selected juveniles. The Code of Ethics is directed at conflicts of interest on the part of individual public officers and employees, rather than at conflicts possibly arising where one governmental agency contracts with another to exchange or provide services.

QUESTION:

Would a prohibited conflict of interest be created were a public defender's office to contract with the Department of Health and Rehabilitative Services to operate a program providing counseling and other services for selected juveniles?

Your question is answered in the negative.

In your letter of inquiry you advise that you are the Public Defender for the Sixteenth Judicial Circuit. You question whether your office could contract with the Department of Health and Rehabilitative Services to operate a juvenile diversionary program in which selected juveniles are diverted from the adjudicatory process of the criminal courts by designation of the State Attorney and referred to the program for counseling. The program, you advise, includes services in such areas as counseling, restitution, job skills training, community work service, and mediation/arbitration, as well as volunteer services similar to a Big Brothers or Big Sisters program. Finally, you advise that similar programs are being administered by State Attorneys in two other judicial circuits.

The Code of Ethics for Public Officers and Employees prohibits certain conflicts of interest on the part of individual public officers and employees. The following language clarifies the Legislature's intent in adopting the Code of Ethics:

It is hereby declared to be the policy of the state that no officer or employee of a state agency or of a county, city, or other political subdivision of the state, and no member of the Legislature or legislative employee, shall have any interest, financial or otherwise, direct or indirect; engage in any business transaction or professional activity; or incur any obligation of any nature which is in substantial conflict with the proper discharge of his duties in the public interest. To implement this policy and strengthen the faith and confidence of the people of the state in their government, there is enacted a code of ethics setting forth standards of conduct required of state, county, and city officers and employees, and of officers and employees of other political subdivisions of the state, in the performance of their official duties. It is the intent of the Legislature that this code shall serve not only as a guide for the official conduct of public servants in this state, but also as a basis for discipline of those who violate the provisions of this part. [Section 112.311(5), Florida Statutes (1981).]

Thus, for example, the Code of Ethics prohibits a public officer or employee from doing business with his agency and from having certain conflicting employment or contractual relationships. See Sections 112.313(3) and 112.313(7)(a), Florida Statutes.

No provision in the Code of Ethics would prohibit one governmental agency from contracting with another to exchange or provide services. As the contract which is the subject of your inquiry would be between the Office of the Public Defender and the Department of Health and Rehabilitative Services, rather than between yourself as a private individual and the Public Defender's Office or D.H.R.S., the Code of Ethics simply does not apply here.

Accordingly, we find that no prohibited conflict of interest would be created were your office to contract with the Department of Health and Rehabilitative Services to operate the proposed juvenile diversionary program. In addition, we note that as attorneys, you and your Assistant Public Defenders also are bound by the Code of Professional Responsibility. For this reason, you may wish to contact the Florida Bar regarding this proposed contract.