CEO 83-65 -- September 22, 1983

CONFLICT OF INTEREST

D.H.R.S. EMPLOYEE SUPERVISING CONTRACT FOR REFUGEE SERVICES WHERE SPOUSE IS INVOLVED WITH SUBCONTRACT

To: Ms. Mae D. Bryant, District XI Program Manager for Social Services, Department of Health and Rehabilitative Services

SUMMARY:

No prohibited conflict of interest exists where an employee of the Department of Health and Rehabilitative Services who supervises and monitors contracts for refugee services is married to an individual who is the contract manager for refugee services for a subcontracting agency. As the contracts were entered into before the employee assumed her position, there would be no violation of Sections 112.313(3), 112.313(4), or 112.3185(6), Florida Statutes.

QUESTION:

Does a prohibited conflict of interest exist where an employee of the Department of Health and Rehabilitative Services who supervises and monitors contracts for refugee services is married to an individual who is the contract manager for refugee services for a subcontracting agency?

Your question is answered in the negative.

In your letter of inquiry you advise that you supervise Ms. Maria Puig, who is the District Refugee Coordinator responsible for supervising and monitoring contracts for refugee services in District XI, Department of Health and Rehabilitative Services. You advise that one of the contracts is with the local Comprehensive Employment and Training Agency, which in turn subcontracts with a center where the subject employee's husband is the contract manager for refugee services. The contracts were entered into prior to her assuming that position, you advise.

In addition, you advise that normally the District Refugee Coordinator would have dealings only with CETA, which is responsible for monitoring the subcontract with the center. However, if a problem came to the Coordinator's attention regarding the center, she might have occasion to look into it. You advise that you have attempted to forestall this possibility by entering into a written agreement with the subject employee that if any matters arise concerning the center, you will resolve them rather than have the employee become involved.

The Code of Ethics for Public Officers and Employees contains only three provisions which prohibit conflicts of interest arising out of the activities of the spouse of a State employee. Those provisions are as follows:

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.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1981).]

UNAUTHORIZED COMPENSATION. -- No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity. [Section 112.313(4), Florida Statutes (1981).]

No agency employee acting in his official capacity shall directly or indirectly procure contractual services for his own agency from any business entity of which a relative, as defined in s. 116.111(1)(c), 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. [Section 112.3185(6), Florida Statutes (Supp. 1982).]

We are of the opinion that none of these provisions would prohibit the situation which you have described, as the contracts were entered into before the subject employee assumed her position. Therefore, she could not have acted in an official capacity to procure the contractual services provided by the center which employs her husband.

Accordingly, we find that no prohibited conflict of interest exists where the subject employee's husband is the contract manager for refugee services for a center which has subcontracted to provide refugee services. Despite the fact that this situation does not violate the Code of Ethics, we approve of your agreement with the subject employee under which she will not become involved in matters concerning the center which employs her husband, as we agree that there is a possibility of a conflict of interest in the situation.