CEO 79-48 -- September 6, 1979

CONFLICT OF INTEREST

H.R.S. STAFF DEVELOPMENT AND TRAINING SUPERVISOR CONTRACTING TO TRAIN C.E.T.A. EMPLOYEES

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(7)(a), F. S., prohibits a public employee from having any employment which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties or which impedes the full and faithful discharge of his public duties. This provision would be violated were a staff development and training supervisor for the Department of Health and Rehabilitative Services, District II-A Retardation Program, to contract with the Office of Manpower Planning to train C.E.T.A. employees for potential employment in an intermediate care facility for the mentally retarded (I.C.F./M.R.). An I.C.F./M.R. which is to be opened within the petitioner's district will assume responsibility for approximately 55 clients from Sunland Marianna and for approximately 24 clients from the Florida State Hospital at Chattahoochee; and, because the district feels a responsibility to ensure continued care and therapy for these clients, it has agreed to assist in training persons employed on the I.C.F./M.R. staff. The possibility therefore exists that the staff development and training supervisor would assist in training former C.E.T.A. employees hired by the facility while having had prior responsibility for training them under the C.E.T.A. grant. Moreover, the qualifications of the facility's staff would be subject to the review of H.R.S., the petitioner's public employer.

QUESTION:

Would a prohibited conflict of interest be created were I, the Staff Development and Training Supervisor for the Department of Health and Rehabilitative Services (H.R.S.), District II-A Retardation Program, to contract while on annual leave with the Office of Manpower Planning to prepare through training C.E.T.A. employees for potential employment in an intermediate care facility for the mentally retarded?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you are employed by the Department of Health and Rehabilitative Services (H.R.S.) Retardation Program at the Sunland Center in Marianna as staff development and training supervisor. In your letter and in a telephone conversation with our staff, you advise that your responsibilities include identifying training needs and developing, implementing, and evaluating training programs for Sunland Center staff, community retardation staff, foster and group homes, and activity center vendor staff within district II-A (Bay, Gulf, Holmes, Washington, Jackson, and Calhoun Counties).

You further advise that you have been contacted and offered a contract by the Office of Manpower Planning to provide training for 20 C.E.T.A. employees for potential employment in a private intermediate care facility for the mentally retarded which is scheduled to be opened in Bristol, Liberty County. Such work would be performed while on approved annual leave. The Office of Manpower Planning functions within the Office of the Secretary of Community Affairs and is responsible for carrying out the duties and responsibilities assigned to the Governor under the Federal Comprehensive Employment and Training Act of 1973. Section 13.9989, F. S. The director of that office has the authority to sign contracts on behalf of the Governor with program operators contracting with the state under the act. Section 13.9989(4). You advise that it is your understanding that the contract funds would be provided solely by the Federal Government.

In addition, you advise that the H.R.S. Retardation Program is encouraging the development of private, profit-incentive, intermediate care facilities for the mentally retarded to meet the need of placing Sunland Center clients and other retarded citizens in small facilities which meet federal service delivery standards. An intermediate care facility for the mentally retarded (I.C.F./M.R.) is

. . . a residential facility licensed in accordance with state law, and certified by the federal government pursuant to the Social Security Act, as a provider of medicaid services to persons who are mentally retarded or who have related conditions. The capacity of such a facility shall not be more than 120 clients. [Section 393.063(15), F. S. 1977.]

Such facilities are licensed by the Department of Health and Rehabilitative Services and are subject to inspections by the department. Section 393.067, F. S. 1977. In a telephone conversation with our staff, the Mental Retardation Program Office advised that the licensing and inspection of an I.C.F./M.R. is handled by H.R.S.'s Office of Licensure and Certification and not by its district offices. The Mental Retardation Program Office also advised that funding for an I.C.F./M.R. comes from federal and state Medicaid funds, with the state contributing slightly less than half of each Medicaid dollar. In order to receive federal funds, you advised in a telephone conversation with our staff, each I.C.F./M.R. must meet federal standards and must pass federal inspections pertaining to its physical plant, the qualifications of its staff, and the nature of its programs.

The Code of Ethics for Public Officers and Employees prohibits a public employee from acting in a private capacity to sell any services to his own public agency. Section 112.313(3), F. S. However, this provision would not prohibit your entering into the employment you propose as you would not be selling services to your own agency but to the Office of Manpower Planning. An "agency" for purposes of the Code of Ethics is defined to include a state department, division, and bureau. Section 112.312(2), F. S. As the Department of Health and Rehabilitative Services is not structured in such a manner, we have analogized an H.R.S. district as a division and a subdistrict as a bureau. See CEO 78-50. As you are employed as Staff Development and Training Supervisor for H.R.S. District II- A, your "agency" is that subdistrict.

The Code of Ethics also provides:

No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or an 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), F. S.]

The first part of this provision prohibits you from having a contractual relationship with a business entity or an agency which is subject to the regulation of, or doing business with, your agency. The outside employment you propose would involve a contractual relationship not with the I.C.F./M.R. but with the Office of Manpower Planning of the Department of Community Affairs, which clearly is neither subject to the regulation of, nor doing business with, H.R.S. District II-A. Therefore, the first portion of this provision would not prohibit the outside employment you contemplate.

However, the second portion of s. 112.313(7)(a), above, prohibits a public employee from having any employment which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties or which impedes the full and faithful discharge of his public duties. We are of the view that this provision would prohibit your contracting with the Office of Manpower Planning while on annual leave under the circumstances you have described. We note that, as you have advised in a telephone conversation with our staff, the I.C.F./M.R. to be opened in Liberty County will assume responsibility for approximately 55 clients from Sunland Marianna and for approximately 24 clients from the Florida State Hospital at Chattahoochee. Because the district feels a responsibility to its present clients to ensure their continued care and therapy, you advised, the district has agreed to assist in training persons employed on the staff of the I.C.F./M.R.

Therefore, the distinct possibility exists that, as staff development and training supervisor, you would assist in training former C.E.T.A. employees hired by the I.C.F./M.R. when you had the prior responsibility of training them under the C.E.T.A. grant. Moreover, H.R.S. is responsible for seeing that the I.C.F./M.R. meets its licensing criteria, which include a requirement that the staff of an I.C.F./M.R. be "qualified," H.R.S. Rule 10D-38.24, F.A.C. As you would be training persons for employment with the I.C.F./M.R., their qualifications would be subject to review by the department which employs you.

Accordingly, we find that a prohibited conflict of interest would be created were you, the Staff Development and Training Supervisor for the H.R.S. District II-A Retardation Program, to contract while on annual leave with the Office of Manpower Planning to prepare through training C.E.T.A. employees for potential employment in an intermediate care facility for the mentally retarded.