CEO 83-73 -- September 22, 1983

CONFLICT OF INTEREST

D.H.R.S. DISTRICT ADVISORY COUNCIL MEMBER EMPLOYED BY NONPROFIT CORPORATION CONTRACTING WITH DISTRICT

To: Ms. Lucy D. Hadi, District Administrator, District IV, Department of Health and Rehabilitative Services

SUMMARY:

No prohibited conflict of interest exists where a member of a district advisory council of the Department of Health and Rehabilitative Services is employed as executive director of a nonprofit corporation which is a contract provider for the district. Section 112.313(7)(b), Florida Statutes, exempts from the prohibition of Section 112.313(7) situations where practice in a particular profession or occupation is required or permitted by law or ordinance. Here, Section 20.19(5), Florida Statutes, requires each advisory council to include five local representatives of public and private organizations which provide health, social, rehabilitative, or legal services within the district.

QUESTION:

Does a prohibited conflict of interest exist where a member of a District Advisory Council of the Department of Health and Rehabilitative Services is employed as Executive Director of a nonprofit corporation which is a contract provider for the District?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. Daniel Cook is a member of the Department of Health and Rehabilitative Services District IV Advisory Council. Under Section 20.19(5), Florida Statutes, there is a district advisory council for each service district within the Department. Each council is composed of eleven regular members, including five local representatives of public and private agencies or organizations which provide health, social, rehabilitative, or legal services within the District. The duties of the Advisory Council require it to become involved directly in every phase of the District's responsibilities in dispensing the social, health, and rehabilitative services required of the District by law, you advise.

In addition, you advise that the subject Council member is employed as the Executive Director of a nonprofit corporation which has several contracts with the District as a service provider. Under these contracts, the nonprofit corporation provides a number of services for emotionally disturbed youths at agreed-upon rates.

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), Florida Statutes (1981).]

This provision prohibits a public officer from being employed by a business entity which is doing business with his agency. A member of an advisory body such as a district advisory council is a "public officer" for purposes of this prohibition. Section 112.313(1), Florida Statutes. We previously have advised that a nonprofit corporation is a "business entity." See CEO 82-9. Finally, we are of the opinion that the "agency" of a district advisory council member is the service district of the Department for which the council has been created. In making this determination, we particularly note that a District constitutes an "agency" for purposes of the Code of Ethics (see CEO 81-2), that each council is created within a service District, and that the responsibilities of a council primarily relate to its District.

However, we also are of the opinion that the following provision of the Code of Ethics serves to exempt the council member from the prohibition of Section 112.313(7)(a):

This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance. [Section 112.313(7)(b), Florida Statutes (1981).]

In a previous opinion, CEO 80-59, we found this exemption to apply to a professor of medicine appointed to the Diabetes Advisory Council, where the Council was to include one representative from each medical school in the State. Here, the subject Council member was appointed as a local representative of a public or private agency or organization providing health, social, rehabilitative, or legal services within the District. Section 20.19(5)(b)5, Florida Statutes. Given the specificity of the appointment language used by the Legislature, we are of the opinion that the Legislature contemplated service on a District Advisory Council by an individual employed by an organization providing health, social, or rehabilitative services through contracts with the Department, regardless of the possibility of a resulting conflict of interest.

Accordingly, we find that no prohibited conflict of interest exists in the subject District Advisory Council member's employment with a nonprofit corporation contracting with the District. Although we have found no prohibited conflict of interest per se in the Council member's private employment, he should be cautioned that the use of "inside" information for the advantage of his employer would violate the following prohibition:

DISCLOSURE OR USE OF CERTAIN INFORMATION. -- No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), Florida Statutes (1981).]