CEO 87-25 -- April 23, 1987

CONFLICT OF INTEREST

D.H.R.S. AGING AND ADULT SERVICES PROGRAM EMPLOYEE

EMPLOYED BY H.R.S. DEVELOPMENTAL SERVICES PROGRAM

To: Ulysses F. Connelly, Human Services Program Administrator, District V, Department of Health and Rehabilitative Services

SUMMARY:

No prohibited conflict of interest exists under Section 112.313(3) or (7), Florida Statutes, where a Human Services Counselor with a Department of Health and Rehabilitative Services District Aging and Adult Services Program, who is responsible for investigating allegations of abuse, neglect, and exploitation of adults and the elderly, is employed part-time by the District's Developmental Services Program to monitor private residential facilities which have contracted to provide developmental services for clients of the Department. Here, the employee played no role in the hiring decision, would not be in a position to review his own work, and would not be an employee of a private facility which he would be in a position to investigate.

QUESTION:

Does a prohibited conflict of interest exist where a Human Services Counselor with a Department of Health and Rehabilitative Services District Aging and Adult Services Program, who is responsible for investigating allegations of abuse, neglect, and exploitation of adults and the elderly, is employed part-time by the District's Developmental Services Program to monitor residential facilities which have contracted to provide developmental services for clients of the Department?

Your question is answered in the negative.

In your letter of inquiry you advise that .... is employed as a Human Services Counselor II within the Department of Health and Rehabilitative Services District V, Aging and Adult Services Program. In that position, he primarily is responsible for investigating allegations of abuse, neglect, and exploitation of adults and the elderly.

You also advise that the employee was hired on an "as needed" basis by the District's Developmental Services Program because of his prior experience as a quality assurance monitor at D.H.R.S. headquarters. In this part-time capacity, he provides technical assistance to the Developmental Services Program and monitors private residential facilities which have contracted with Developmental Services to provide services for clients of the Department to see that those facilities are complying with written corrective action plans which have been formulated for each client. You question whether a prohibited conflict of interest would be created by virtue of the fact that the employee could become involved in investigating abuse, neglect, and exploitation allegations regarding a facility which he has monitored.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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).]

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).]

Section 112.313(3) prohibits a public employee from acting in a private capacity to sell any services to his agency. Section 112.313(7) prohibits a public employee from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties.

Conversely, the following provision of the Code of Ethics requires that the Code not be interpreted to preclude employment which does not interfere with the full and faithful discharge of a public employee's duties:

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).]

In our view, the part-time developmental services work done by the employee does not interfere with the full and faithful discharge of his public duties as an employee in the Aging and Adult Services Program. First, the employee had no role in the decision to hire himself, as that decision was made by the Developmental Services Program. Secondly, the employee is not in a position to review work for the Aging and Adult Services Program which he performed in behalf of the Developmental Services Program. Finally, the employee is not employed by the private facilities which he monitors and therefore owes no duties to those facilities which would interfere with his duties to investigate abuse, neglect, and exploitation complaints against the facilities.

Accordingly, we find that no prohibited conflict of interest exists where the subject Human Services Counselor with the Aging and Adult Services Program is employed part-time by the Developmental Services Program to monitor private residential facilities which have contracted to provide developmental services for clients of the Department.