CEO 87-78 -- October 29, 1987

CONFLICT OF INTEREST

COUNTY COMMISSIONER RETAINED AS ATTORNEY

BY PUBLIC HOSPITAL IN COUNTY

To: Mr. Charles L. Bigelow, Jr., Member, Lee County Board of County Commissioners, Fort Myers

SUMMARY:

No prohibited conflict of interest would be created were a county commissioner to be retained as an attorney by a public hospital within the county and by nonprofit corporations supporting the hospital. Under the circumstances, the various relationships between the public hospital and the county commission would not present the commissioner with a conflict of interest prohibited by Section 112.313(7), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created were you, a county commissioner, to be retained as an attorney by a public hospital within the county and by nonprofit corporations supporting the hospital?

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

In your letter of inquiry you advise that you serve as a member of the Lee County Board of County Commissioners. Prior to your election, you advise, you served as attorney to the board of directors of the public hospital in the County and rendered legal services to two nonprofit corporations which support the efforts of the public hospital. After your election, you resigned as attorney to these organizations and agencies, but now they desire that you resume your representation of them, if possible.

You further advise that the hospital board of directors, a special purpose unit of local government created by special act of the Legislature, owns and operates the public hospital independently of County government. Members of the board of directors are elected. You advise that a portion of the present hospital was constructed with the proceeds of a general obligation bond issued by the County in the 1960's on lands which were acquired for and are held for the use of the public hospital by the County. The hospital board of directors and the two nonprofit corporations are seeking to develop a comprehensive healthcare campus which would include an acute care hospital and other health care providers. The development is a development of regional impact and has been approved and zoned by the County. Further permits will be required from time to time but are largely ministerial and will be issued administratively by the County pursuant to its development regulation. Few, if any, issues requiring County Commission approval are anticipated unless the development plan previously approved is changed substantially, you advise.

Finally, you advise that from time to time issues involving indigent health care may arise between the hospital and the County. These issues occur infrequently, probably not more than two to three times each year. The County provides no financial support to the hospital except that medical care for jail prisoners is paid for by the County as required by law. Further, in previous years the County Health Department, a joint State and County agency, has paid the hospital partially for services rendered to indigent expectant mothers through the County's improved pregnancy outcome program. Although this is not occurring at present, the hospital has requested in the past, and may request in the future, County reimbursement for services rendered to such patients.

The Code of Ethics for Public Officers and Employees provides:

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 county commissioner from having a contractual relationship with an agency or a business entity which either is doing business with the County Commission or is subject to the regulation of the County Commission.

To the extent that the County and the hospital might be considered to be "doing business" with each other on the basis of the bond issue, we find that as this occurred prior to your election to office the situation would be "grandfathered-in" under the rationale of such opinions as CEO 82-10. In CEO 85-60 we advised that a county would not be "doing business" with a nonprofit hospital corporation merely because the county assisted in paying for medical treatment of indigents as required by law. In addition, we previously have found such intergovernmental relationships and joint programs as the County's improved pregnancy outcome program not to constitute "doing business" between governmental entities. See CEO 84-18, CEO 81-5, and CEO 80-5. With respect to the development which the hospital is engaged in, we have not found developers to be "subject to the regulation of" the governing body of a county or city, as explained in CEO 84-1.

Section 112.313(7)(a), Florida Statutes, also prohibits a county commissioner from having any contractual relationship that would present a continuing or frequently recurring conflict of interest or which would impede the full and faithful discharge of his public duties. However, given the infrequency with which you expect matters involving the hospital to come before the Board of County Commissioners, we do not find that your employment as an attorney by the hospital and the nonprofit corporations would be prohibited by this provision. Please note, however, the restrictions we have described in CEO 78-86 and CEO 77-126 regarding an official's representation of clients before his agency.

Accordingly, we find that no prohibited conflict of interest would be created were you to be retained as an attorney by the public hospital within the County and by nonprofit corporations supporting the hospital while serving as a member of the Board of County Commissioners.