CEO 88-47 -- July 28, 1988

CONFLICT OF INTEREST

D.H.R.S. PUBLIC ASSISTANCE SPECIALIST OWNING

ADULT CONGREGATE LIVING FACILITY

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

SUMMARY:

No prohibited conflict of interest exists under Section 112.313(7), Florida Statutes, where a public assistance specialist employed by a district of the Department of Health and Rehabilitative Services owns an adult congregate living facility. The employee is not in a position to influence regulation of or referrals to such a facility or payments to its clients. CEO's 83-84, 77-147 and 87-20 are referenced.

QUESTION:

Does a prohibited conflict of interest exist where a public assistance specialist with a district of the Department of Health and Rehabilitative Services owns an adult congregate living facility?

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

In your letter of inquiry you advise that .... is employed as a Public Assistance Specialist with the Economic Services Program of District V, Department of Health and Rehabilitative Services. In that position she primarily is responsible for initial and ongoing determinations of eligibility for Supplemental Security Income (SSI) and medically needy cases. She also schedules and conducts interviews with prospective and current program recipients to determine initial and continued financial eligibility for Medicaid benefits. You further advise that she recently has inherited an ownership interest in an adult congregate living facility (ACLF) and intends to undertake the financial management of this home.

Although the ACLF itself does not receive Medicaid payments, many of its residents receive SSI which entitles them to Medicaid coverage for medical care and prescription drugs. Residents of the ACLF are responsible for paying their own care costs. However, those residents who are eligible for SSI pay these costs with a combination of SSI, Optional State Supplementation (OSS), and/or Social Security. The moneys received by the ACLF are paid directly from the residents' own incomes. The subject employee's position with the Department specifically involves clients in the community who maintain their own households and need help with the payment of their medical bills and, therefore, applications of ACLF clients are not assigned to her.

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 (1987).]

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 and further prohibits the employee from having any outside employment that would create a continuing or frequently recurring conflict of interest. The term "agency" is defined in the Code of Ethics to mean

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. of their private employer would be used. [Section 112.312(2), Florida Statutes (1987).]

We previously have determined the "agency" of an employee of the Department by analogy to the department/division/bureau model specified in this definition. See CEO 86-76. Therefore, the subject employee's "agency" for purposes of the Code of Ethics is District V. We also have advised that ownership of a business entity constitutes "employment" for purposes of Section 112.313(7)(a). See CEO 83-84, for example.

You have advised that the ACLF is not doing business with the Department. However, the ACLF is licensed by the District Office of Licensure and Certification. Ongoing inspection of facilities also is the responsibility of this office.

Although the ACLF is regulated by the District, the following provision requires that the Code of Ethics not be interpreted to preclude private pursuits which do 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 (1987).]

We previously have found that Department employees whose public responsibilities were unrelated to their private pursuits could retain their outside employment without violating the Code of Ethics. For example, in CEO 77-147 we advised that county department of public health employees were not prohibited from employment with nursing homes which were licensed and regulated by their agency, where the employees had no responsibility with respect to the nursing homes, were not in a position to supervise or regulate those persons who were responsible for regulating nursing homes, and therefore were not in a position to obtain preferential treatment from or award public business to the nursing homes which employed them. Also, in CEO 87-20, we found no prohibited conflict of interest to exist were a screening coordinator to own and operate a ACLF where she played no role in regulation, inspection, or funding, and was not in a position to make any referrals to the facility. In the present case, the employee is not in a position to influence the regulation of the ACLF. The determination of an individual's eligibility to receive an OSS check for the cost of care in an ACLF is within the responsibility of an adult payments worker within the unit where the subject employee works. However, the subject employee's duties do not include the OSS program. Clients are placed in an ACLF based upon their preference, special needs and the availability of facilities by human services counselors in the Aging and Adult Services Program. The employee also would not have any influence in this area.

Accordingly, we find that no prohibited conflict of interest would be created were the subject employee to own and operate an ACLF while serving as a public assistance specialist with the Department.