CEO 86-17 -- February 20, 1986

CONFLICT OF INTEREST

D.H.R.S. DISTRICT INTAKE COUNSELOR ALSO EMPLOYED BY NURSING HOME WHICH RECEIVES MEDICARE PAYMENTS ADMINISTERED THROUGH D.H.R.S.

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

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were a D.H.R.S. District Intake Counselor with the Children, Youth and Family Services Office to be employed part-time as a consultant by a nursing home which receives medicare and medicaid payments. Here, the employee's duties have nothing to do with the medicare and medicaid programs or with the regulation of nursing homes.

QUESTION:

Would a prohibited conflict of interest be created were you, a D.H.R.S. District Intake Counselor, to be employed as a part-time consultant by a nursing home which receives Medicare and Medicaid payments administered through D.H.R.S.?

Your question is answered in the negative.

In your letter of inquiry you advise that you are employed by the Department of Health and Rehabilitative Services as a District Intake Counselor with the Children, Youth and Family Services Office of District VIII. Your responsibilities include: receiving and screening reports of children alleged to be delinquent or dependent; completing comprehensive assessments of individual cases; recommending dispositions through nonjudicial or court handling; and making emergency shelter, volunteer home, and detention placements. Further, you advise that you have been offered employment as a part- time consultant with a private nursing home. Your responsibilities primarily would be to determine if the activities and social services programs at the facility are meeting minimal requirements.

In addition, you have stated that D.H.R.S. through a contractual relationship with EDS Federal Corporation administers Medicaid payments on behalf of nursing home residents for monthly medical and custodial care and that some residents of the nursing home which seeks your employment receive payments through this program. However, your current position with D.H.R.S. has nothing to do with this program or with regulating nursing homes.

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 (1985).]

Thus, a public employee is prohibited from being employed by a business entity which is subject to the regulation of or is doing business with his agency. However, in construing the Code of Ethics, we must 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, Florida Statutes (1985).]

This 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 public duties. Here it is apparent that you are not in a position to supervise those persons who administer the medicare funds or who are responsible for the regulation of nursing homes. This being the case, we find that your proposed employment with the private nursing home would not interfere with the full and faithful discharge of your public duties.

Accordingly, we find that no prohibited conflict of interest would be created were you, a D.H.R.S. District Intake Counselor, also to be employed as a part-time consultant for a private nursing home.