CEO 81-68 -- September 17, 1981

CONFLICT OF INTEREST

ASSISTANT PUBLIC DEFENDER SERVING AS MEMBER OF MENTAL HEALTH BOARD AND MEMBER OF BOARD OF PRIVATE HOSPITAL

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

SUMMARY:

No prohibited conflict of interest exists where an assistant public defender responsible for representing indigent persons subject to involuntary admission to a mental health facility has been appointed as a member of a district mental health board. The office of public defender is neither subject to the regulation of the mental health board nor doing business with the mental health board. Since the mental health board had no direct authority over or direct contact with the client, but rather oversees the provision of mental health services generally within its area, representing the interests of a client with respect to involuntary placement would not involve any challenge to the actions of the board or any contact with the board.

Section 394.70(1)(e), Florida Statutes, provides that no member of a mental health board shall serve as a member of a board of a community mental health facility. As this provision apparently would prohibit a member of a district mental health board from serving as chairman of the governing board of a hospital which serves as a receiving facility in evaluating patients as to whether they should be discharged or involuntarily placed, no opinion is rendered as to the applicability of the Code of Ethics to the situation.

QUESTION 1:

Does a prohibited conflict of interest exist where you, an Assistant Public Defender who handles the responsibilities of that office under the Baker Act, have been appointed as a member of a District Mental Health Board?

This question is answered in the negative.

In your letter of inquiry you advise that you are an Assistant Public Defender who has handled primarily the responsibilities of the Public Defender's Office as required by Chapter 394, Florida Statutes, commonly known as the Baker Act. The Baker Act requires that in case of indigency of a person who is to be involuntarily admitted to a facility which evaluates and treats mental illness the court may appoint the Public Defender's Office to represent that person. In your role as an Assistant Public Defender, you advise, you interview the patient, interview various family members, review hospital records, speak with as many members of the hospital staff as possible, and then act as an advocate in a Court proceeding for the mental patient. As an advocate, you attempt to obtain the most prudent results for the patient, considering the patient's present circumstances. You feel that if the family, staff, hospital, and doctor all feel that a patient should be hospitalized, either in the State or local facility, then you should not take a position that will be of little or no value to the patient. Therefore, you follow the guidelines set forth by the Florida Supreme Court and attempt to obtain the most appropriate placement or the least restrictive alternative available. In many instances, this would be a discharge from the hospital.

Members of a district mental health board are appointed by the county commissions located within the district. Section 394.70, Florida Statutes. Each mental health board is charged with the responsibility of reviewing the mental health needs, services, and facilities within its area and preparing a district plan and budget based upon its evaluation. The board is authorized to contract for State funds and then to contract for services to be provided by local hospitals, clinics, and institutions.

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 (1979).]

Under this provision, we must determine whether you, as a member of the Mental Health Board, would have conflicting employment because of your employment as an Assistant Public Defender. It is apparent that the Office of the Public Defender is not subject to the regulation of the Mental Health Board. See, generally, Part II, Chapter 27, Florida Statutes. Nor does it appear that the Mental Health Board provides funding to the Public Defender's Office. Finally, we do not perceive any conflict between your role as Assistant Public Defender in representing the interests of a client and your duties as a member of a Mental Health Board. The Mental Health Board has no direct authority over or direct contact with the client; rather, the Board's role is to oversee the provision of mental health services within its area. Therefore, representing the interests of a client with respect to involuntary placement would not involve any challenge to the actions of the Mental Health Board or any contact with the Board.

Accordingly, we find that no prohibited conflict of interest exists where you are an Assistant Public Defender and also a member of the District Mental Health Board.

QUESTION 2:

Does a prohibited conflict of interest exist where you, a member of a District Mental Health Board also are chairman of the governing board of a hospital which serves as a receiving facility under the Baker Act?

In your letter of inquiry you advise that subsequent to your appointment as a member of the District Mental Health Board, you were appointed to the governing board of a local hospital which is a wholly-owned subsidiary of a corporation for profit. For your service as chairman of the Board you receive a monthly stipend. In addition, you advise that the Mental Health Board has contracted to fund a local clinic which in turn has contracted with the hospital, under which contract the hospital serves as the local receiving facility in evaluating Baker Act patients as to whether they should be discharged or involuntarily placed.

Section 394.70(1)(e), Florida Statutes, provides that no member of a mental health board shall serve as a member of a board of a community mental health facility. This provision would preclude a person from serving both on a mental health board and on the governing board of a facility which provides inpatient, outpatient, or diagnostic services under the mental health plan prepared by the mental health board.

As our authority in rendering advisory opinions under the Code of Ethics is limited to the provisions of the Code of Ethics, we are unable to make a final determination of whether this statutory provision would prohibit you from serving on the governing board of the hospital. Because of the apparent application of Section 394.70(1)(e) to your situation, however, we prefer that a determination be made under that Section before we address the applicability of the Code of Ethics to the situation you have described.