CEO 86-76 -- October 29, 1986

CONFLICT OF INTEREST

D.H.R.S. EMPLOYEE CONTRACTING WITH DEPARTMENT FACILITIES TO PROVIDE THERAPEUTIC EQUIPMENT

To: Marc T. Frazer, Occupational Therapist, District III, Sunland Training Center, Department of Health and Rehabilitative Services, Gainesville

SUMMARY:

No prohibited conflict of interest would be created under Sections 112.313(3) and 112.313(7)(a), Florida Statutes, were an occupational therapist for a D.H.R.S. Sunland Training Center to contract with Department and non-Department facilities, or to contract with a corporation which would receive referrals from these facilities, to evaluate the need for therapeutic equipment and to provide such equipment. The therapist would not provide services to Sunland and Sunland clients. As he has no responsibilities beyond Sunland, and plays no role in the referral of Sunland clients to other facilities, his private pursuit would not interfere with the full and faithful discharge of his public duties.

QUESTION:

Would a prohibited conflict of interest be created were you, an occupational therapist for a D.H.R.S. Sunland Training Center privately to contract with other Department and non-Department facilities, or to contract with a corporation which would receive referrals from these facilities, to evaluate the need for therapeutic equipment and to provide such equipment?

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

In your letter of inquiry you advise that you are employed by the Department of Health and Rehabilitative Services as an occupational therapist and serve as the adaptive devices coordinator at the District III Sunland Training Center in Gainesville. Your responsibilities include supervising employees in the construction and repair of adaptive equipment; consulting with therapists and assisting in the design, construction, or purchase of various adaptive devices; and consulting with local adaptive equipment dealers regarding the purchase of various devices, parts, or services.

You advise that you intend to provide services to various D.H.R.S. and non-D.H.R.S. facilities on a private basis. These services would consist of evaluating the need for therapeutic equipment, and providing such equipment. You also advise that you would have the option to provide these services directly, or to contract with a corporation that is not subject to the regulation of the Department. The corporation would receive referrals from facility therapists, and would contract with you to provide the services. You state that you would not provide any services to Sunland or to Sunland clients.

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.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1985).]

This provision prohibits a public employee from acting in a private capacity to sell any goods or services to his agency. The Code of Ethics further 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).]

Thus, a public employee is prohibited from having a contractual relationship with a business entity which is doing business with his agency.

The term "agency" is defined in Section 112.312(2), Florida Statutes (1985), as

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.

In previous opinions, we have determined the "agency" of a D.H.R.S. employee by analogy to the department-division-bureau model specified in this definition. See CEO 78-50, CEO 80-1, and CEO 80-76. In CEO 78-50, we found that a district of the Department is the equivalent of a division within other state departments, and that a subdistrict within a district is the equivalent of a bureau.

The Sunland Treatment Center is located in Gainesville, which is within the geographic area encompassed by District III. District III is divided into subdistricts A and B. Section 20.19(4)(a), Florida Statutes (1985). According to the District III office, the Center is supervised by the District Administrator, and not by a Subdistrict Administrator. As the direct responsibility over the Center lies with the District, your "agency" for purposes of the Code of Ethics is District III of the Department. Therefore, Section 112.313(3) would prohibit you from selling your services to D.H.R.S. facilities within District III, and Section 112.313(7)(a), would prohibit you from contracting with a corporation to provide these services to facilities within the District.

The following provision, however, requires that the Code of Ethics not be interpreted to preclude private pursuits which do not interfere with the full and faithful discharge of an employee's public 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 previous situations, we have found that D.H.R.S. employees whose public responsibilities were unrelated to their private pursuits, and who had no role in the client referral process, could retain their outside employment without violating the Code of Ethics for Public Officers and Employees. See CEO 84-24. Here, we note that in your position as occupational therapist, you have no responsibilities beyond Sunland. This fact was confirmed by a telephone call to the District III administrative office. Furthermore, you play no role in the referral of Center clients to other facilities. Finally, we see no other reason which would indicate that your proposal would create a continuing or frequently recurring conflict of interest or would interfere with the full and faithful discharge of your duties as an occupational therapist.

Accordingly, under the circumstances presented, we find that no prohibited conflict of interest would be created were you to contract with D.H.R.S. and non-D.H.R.S. facilities, or to contract with a corporation which would receive referrals from these facilities, to evaluate the need for therapeutic equipment and to provide such equipment while employed as an occupational therapist at the Sunland Training Center.