CEO 85-32 -- May 9, 1985

CONFLICT OF INTEREST

COUNTY HEALTH DEPARTMENT EMPLOYEE SERVING ON BOARD OF DIRECTORS OF NONPROFIT CORPORATION CONTRACTING WITH D.H.R.S.

To: Ms. Claudia Isom-Rickert, District VI Legal Counsel, Department of Health and Rehabilitative Services, Tampa

SUMMARY:

No prohibited conflict of interest exists where an administrative assistant to the director of a county health department is the chairman of the board of directors of a nonprofit corporation which has contracted with a district of the Department of Health and Rehabilitative Services to provide child day care services. Here, the nonprofit corporation is not doing business with the employee's agency, the health department. In addition, the employee has no responsibilities in the day care licensing process and has no authority over licensing personnel.

QUESTION:

Does a prohibited conflict of interest exist where an administrative assistant to the director of a county health department is the chairman of the board of directors of a nonprofit corporation which has contracted with a district of the Department of Health and Rehabilitative Services to provide child day care services?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that Ms. Helen Montemarano is employed as an Administrative Assistant to the Director of the Manatee County Health Department and that she is the Chairman of the Board of Directors of a private nonprofit corporation which has contracted with D.H.R.S. District VI to provide child day care services. The employee does not receive any compensation for serving as chairman, which position authorizes her to sign all contracts involving the corporation. As an employee of the Health Department, she had no involvement with the contract between the corporation and D.H.R.S. District VI. In addition, although the contract is for child day care services and the Health Department is responsible for licensing day care centers, the employee has no responsibilities involving the licensing process and has no authority over licensing personnel.

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 (1983).]

As we have advised in previous opinions, noncompensated service as a member of the board of directors of a nonprofit corporation does not constitute an employment or contractual relationship subject to this prohibition. See CEO 82-37 and CEO 80-45.

The Code of Ethics also provides:

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 (1983).]

As we advised in CEO 82-37, this provision would prohibit a public employee from acting in a private capacity as the director of a corporation to sell services to the employee's agency. However, in that opinion we found that the employee's agency was different from the agency which was contracting with the nonprofit corporation which he served as a director. Similarly, the nonprofit corporation here has contracted with D.H.R.S. District VI--not with the County Health Department, which we determined in CEO 84-27 to be the agency of a health department employee. In addition, we find that our conclusion is supported by the fact that the employee had no involvement with the contract between the nonprofit corporation and the District and that the employee has no responsibilities in the day care licensing process and has no authority over licensing personnel.

Accordingly, we find that no prohibited conflict of interest exists where the subject Health Department employee serves as chairman of the board of directors of a nonprofit corporation which has contracted with D.H.R.S. to provide child day care services.