CEO 86-67 -- September 17, 1986

CONFLICT OF INTEREST

COUNTY PUBLIC HEALTH UNIT CONTRACTING WITH PHARMACY OWNED BY SPOUSE OF HEALTH UNIT EMPLOYEE

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

SUMMARY:

No prohibited conflict of interest exists where a county public health unit primary care program has contracted with a pharmacy owned by the spouse of the acting director of the primary care clinic to provide drugs for primary care patients. As the acting director has no ownership interest, employment, or other contractual relationship with the pharmacy, Section 112.313(7), Florida Statutes, is inapplicable. As the acting director played no role in the contracting process, neither Section 112.313(3) nor Section 112.3185(6), Florida Statutes, would apply.

QUESTION:

Does a prohibited conflict of interest exist where a county public health unit primary care program has contracted with a pharmacy owned by the spouse of the acting director of the primary care clinic to provide drugs for primary care patients?

Under the circumstances presented, your question is answered in the negative.

Through your letter of inquiry and a telephone conversation between our staff and the business manager of the Pasco County Health Department, we have been advised that Ms. Juanita Haines is the Chief Nurse and Acting Director of the Primary Care Clinic of the Pasco County Public Health Unit. The primary care program of the Health Department has contracted with a pharmacy to provide drugs for primary care patients. The sole owner of the pharmacy is the spouse of the Acting Director of the Primary Care Clinic, who plays no part in the operation of the pharmacy and has no employment or contractual relationship with it.

When the previous year's contract was awarded to the pharmacy under a sealed bid process, the Director of the Primary Care Clinic prepared the bid documents, reviewed all bids, and made recommendations for the award of the contract. At that time the current Acting Director was employed as the Chief Nurse of the Clinic and had no involvement in the contracting process. Only the health officer and the business manager of the Health Department have the authority to enter into contracts for the Department. At the time the present contract was awarded, the decision was made to remove the Acting Director from any involvement in the contracting process; as a result, the business manager handled the entire process, and the Acting Director was not responsible even for making recommendations regarding the contract or which bid to accept. As the contract only covers prescription drugs ordered by a physician, the Acting Director is not in a position to influence the amount of business being done under the contract with her spouse's pharmacy.

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).]

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 (1985).]

No agency employee acting in his official capacity shall directly or indirectly procure contractual services for his own agency from any business entity of which a relative, as defined in s. 116.111(1)(c), 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. [Section 112.3185(6), Florida Statutes (1985).]

Section 112.313(7)(a) would prohibit the subject employee from having any employment or contractual relationship with a business entity which is doing business with her agency. However, as the Acting Director has no ownership interest, employment, or contractual relationship with the pharmacy, this provision does not apply here.

Section 112.313(3) prohibits the Acting Director from acting in an official capacity as a purchasing agent to directly or indirectly purchase any goods or services for her agency from a business entity of which her spouse is the proprietor. The term "purchasing agent" is defined in Section 112.312(16), Florida Statutes, to mean

a public officer or employee having the authority to commit the expenditure of public funds through a contract for, or the purchase of, any goods, services, or interest in real property for an agency, as opposed to the authority to request or requisition a contract or purchase by another person.

As the Acting Director does not have the authority to enter into a contract for the Health Department either in that capacity or as Chief Nurse, she has not acted in an official capacity as a purchasing agent to make purchases from her spouse's pharmacy.

Similarly, Section 112.3185(6) prohibits the Acting Director from acting in an official capacity to procure contractual services for the Health Department from her spouse's pharmacy. Again, as the Acting Director has played no role in the contracting process, this provision does not apply.

Accordingly, based upon the circumstances presented, we find that no prohibited conflict of interest was created for the Acting Director of the Primary Care Clinic, where a pharmacy owned by her spouse contracted with the Primary Care Program to provide drugs for primary care patients.