CEO 77-147 -- September 22, 1977
CONFLICT OF INTEREST
EMPLOYEES OF COUNTY DEPARTMENT OF PUBLIC HEALTH ALSO EMPLOYED BY BUSINESS ENTITIES REGULATED BY DEPARTMENT
To: Morton Laitner, Counsel, Dade County Department of Public Health, Miami
Prepared by: Phil Claypool
SUMMARY:
A public employee is prohibited by s. 112.313(7)(a), F. S., from being employed by a business entity which is subject to the regulation of his public agency. However, s. 112.316 further provides that the Code of Ethics is not intended to be construed so as to prohibit a public employee from holding private interests which do not interfere with the full and faithful discharge of his public duties. Where a public employee holds outside employment with a business entity regulated by his public agency, but where said employee is not in a position to supervise or regulate those persons with regulatory authority and where the employee's public duties in no way involve such regulation, no conflict is deemed to be created. Accordingly, no prohibited conflict of interest exists where an administrator of a county department of public health in its Cuban refugee program privately is employed as a pharmacist by a nursing home; where a social worker in that department teaches a course at a private nursing home; and where a nurse employed by the department in its nursing section is employed part-time by a private hospital.
QUESTIONS:
1. Does a prohibited conflict of interest exist where an administrator of a county department of public health in its Cuban refugee program, who privately is a pharmacist, works for a private nursing home as a pharmacist?
2. Does a prohibited conflict of interest exist where a social worker employed by a county department of public health in its social services division teaches a course at a private nursing home?
3. Does a prohibited conflict of interest exist where a nurse employed by a county department of public health in its nursing section is employed part-time with a private hospital?
Question 1 is answered in the negative.
In your letter of inquiry and in a telephone conversation with our staff, you advise that Mr. Edward Stonis is a licensed pharmacist and is also an administrator within the Dade County Department of Public Health in its Cuban Refugee Program. You also advise that he works part-time for a private nursing home as a pharmacist.
In addition, you have stated that the department, which employs 600 persons, has the responsibility, among others, of assisting the Department of Health and Rehabilitative Services (D.H.R.S.) in performing the licensing and inspection of nursing homes pursuant to part I of Ch. 400, F. S. 1975. In this regard the Department of Public Health has established a Health Facilities Section consisting of three employees who inspect nursing homes within the county. You also have stated that the subject employee has no public responsibilities with respect to nursing homes and that his unit, the Cuban Refugee Program, has no connection at all with the Health Facilities Section except insofar as they are both units of the department.
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), F. S. 1975.]
Thus, a public employee is prohibited from being employed by a business entity which is subject to the regulation of his agency. Here, the subject employee's agency is the Department of Public Health, which does regulate nursing homes.
However, in construing the Code of Ethics, we must also consider another provision, which states:
Construction. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, F. S. 1975.]
The above-quoted provision makes it clear that the Code of Ethics is not intended to be construed so as to prohibit a public employee from holding private interests which do not interfere with the full and faithful discharge of his duties; in effect, this section imposes a "rule of reason" upon the application of the Code of Ethics to any particular set of circumstances.
One of the essential purposes of s. 112.313(7)(a) is to prohibit those situations in which a public officer could obtain preferential treatment from or award public business to a business entity with which he is associated. However, here it is apparent that the subject employee is not in a position to supervise or regulate those persons who are responsible for the regulation of nursing homes. Nor do the employee's duties in any way involve the inspection or regulation of nursing homes. This being the case, we find that the employment of the subject employee by a private nursing home does not interfere with the full and faithful discharge by the employee of the employee's duties.
Accordingly, we find that no prohibited conflict of interest exists where an administrator of the Dade County Department of Public Health in its Cuban Refugee Program, who is also a pharmacist, works for a private nursing home as a pharmacist.
Question 2 is answered in the negative.
In your letter of inquiry and in a telephone conversation with our staff, you advise that Ms. Lori Forbes is employed as a social worker by the Dade County Department of Public Health in its Social Services Division and that she is teaching a course at a private nursing home on a part-time basis. You also advise that the subject employee has no public responsibilities with respect to nursing homes and that her unit, the Social Services Division, has no connection with the Health Facilities Section which inspects nursing homes.
We find the rationale of the answer to your first question, above, to be equally applicable to this question and, accordingly, it is answered in the negative.
Question 3 is also answered in the negative.
In your letter of inquiry and in a telephone conversation with our staff, you advise that Ms. Rita Fredell is employed as a nurse by the Dade County Department of Public Health in its Nursing Section and that she is employed part-time by a private hospital. In addition, you have stated that the department has the responsibility, among others, of assisting D.H.R.S. in performing the licensing and inspection of private hospitals pursuant to Ch. 395, F. S. In this regard, the Health Facilities Section of the department also inspects private hospitals and investigates complaints made against those hospitals. You also advise that the subject employee has no public responsibilities with respect to private hospitals and that her unit has no connection with the Health Facilities Section.
We find the rationale of the answer to your first question, above, is equally applicable to this question and, accordingly, it is answered in the negative.