CEO 87-33 -- April 23, 1987

CONFLICT OF INTEREST

D.H.R.S. EMPLOYEE LISTING NAME WITH

LOCAL HOSPITAL NURSING "FLEX POOL"

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

SUMMARY:

No prohibited conflict of interest exists where a senior community health nurse for the Office of Licensure and Certification, Department of Health and Rehabilitative Services, is classified as a "flex pool" staff nurse at a local hospital. Here, the relationship between the nurse and the hospital does not constitute "employment" within the contemplation of Section 112.313(7)(a), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest exist where a Senior Community Health Nurse with the Risk Management Unit of the Office of Licensure and Certification for the Department of Health and Rehabilitative Services lists her name with the "flex pool" at a local hospital?

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

In your letter of inquiry you advise that .... serves as a Senior Community Health Nurse with the Risk Management Unit of the Office of Licensure and Certification for the Department of Health and Rehabilitative Services. In this position, she is involved with the investigation of hospital serious incident reports and in surveys of hospital risk management programs. You further advise that .... has been employed by a local hospital in the past. Before commencing her employment with the Department, she changed her status with the hospital from full-time staff nurse to "flex pool" staff nurse. This classification allows her to be categorized as an employee of the hospital for reinstatement purposes. She does not receive any benefits, and is not required to work unless the hospital requests her to work and she agrees to do so. .... does not intend to work at the hospital while employed at 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), Florida Statutes (1985).]

This provision prohibits a public employee from having any employment or contractual relationship with a business entity which is subject to the regulation of, or doing business with, her agency.

We are of the opinion that the subject employee is not employed by the hospital by virtue of her "flex pool" staff nurse classification. In Wright v. Commission on Ethics, 389 So.2d 662 (Fla. 1st DCA 1980), it was held that a tenured school teacher who had taken personal leave of absence without pay was not an employee of the school board, because she performed no teaching services, received no compensation, and was not under control of the board, even though her continuing contract as a tenured teacher created an expectancy of future employment. Similarly, in this case the employee performs no nursing services, receives no compensation, and is not under the control of the hospital.

Accordingly, we find that no prohibited conflict of interest exists where a Department of Health and Rehabilitative Services senior community health nurse is classified as a "flex pool" staff nurse at a local hospital.