CEO 82-59 -- July 29, 1982

CONFLICT OF INTEREST

ASSISTANT DIRECTOR OF COUNTY HEALTH UNIT LEASING PROPERTY TO COUNTY FOR USE BY HEALTH UNIT

To: Mr. Noel M. Pfeffer, Assistant General Counsel, Broward County

SUMMARY:

A prohibited conflict of interest would be created were the assistant director of a county health unit to lease a building to the county for the use by the health unit. Section 112.313(3), Florida Statutes, prohibits a county employee from leasing any realty to the county or to any agency thereof. Therefore, as we find that county health units are agencies of the county (Attorney General opinion AGO 080-28), the assistant director of a county health unit may not lease a building to the county for use by the health unit. Section 112.313(12)(b), Florida Statutes, which contains an exemption for competitive bidding situations, would not apply here as no disclosure was made in accordance with the exemption and as the proposed lease is not based solely on the proposal submitted to the county, but upon subsequent negotiations between the county and the assistant director.

QUESTION:

Would a prohibited conflict of interest be created were the assistant director of a county health unit to lease a building to the county for use by the health unit?

Your question is answered in the affirmative.

In your letter of inquiry you advise that Dr. George P. Trodella, the Assistant Broward County Health Director, owns an office building within the County. You also advise that this building is one of two being considered for rental by the County for the use of the County Health Department (the County Health Unit). The specifications for the needs of the Health Department were developed by the Department's Business Manager and Business Office. Pursuant to the County Code, the County Commission is responsible for providing office space for the Department to be paid with fees collected by the Department which are retained by the County in an account for the exclusive use of the Department. Finally, you also have advised that the Assistant County Health Director was not involved in determining the specifications for the office space.

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 (1981).]

This provision prohibits a state employee from leasing any realty to his own agency and prohibits a county employee from leasing any realty to the county or any agency thereof. Therefore, we first must determine whether the Assistant Director of the County Health Department is to be treated as an employee of the State or of the County for purposes of the Code of Ethics.

County health departments, which also are known as county health units, are hybrid agencies of local and state government. Section 154.01, Florida Statutes, authorizes a county to cooperate with the Department of Health and Rehabilitative Services (D.H.R.S.) in the establishment and maintenance of a local health unit in the county. You have advised that the Assistant Director is a State Career Service employee whose salary is paid by the State through a State warrant. However, we note that the primary personnel of health units, such as the director or public health nurse, are to be employed by the board of county commissioners, subject to approval by D.H.R.S.. In addition, the duties of such personnel are to be fixed and determined by D.H.R.S. upon the approval of the county commission. Section 154.04, Florida Statutes. We previously have treated employees of a county health department as local employees, rather than State employees, for purposes of the financial disclosure law. See CEO 77-105. In addition, we find persuasive the opinion of the Attorney General AGO 080-28, in which he advised that county health units are not a part or subdivision of D.H.R.S., but rather are agencies of county government performing county purposes. See also AGO 074-381.

As we have noted above, Section 112.313(3) prohibits an employee of a county from leasing realty to the county. In that we find the subject Health Department employee to be an employee of the County for purposes of the Code of Ethics, we find that this prohibition would apply here.

Finally, we must determine the applicability of the competitive bidding exemption contained in Section 112.313(12)(b), Florida Statutes. That provision creates an exemption to the prohibition of Section 112.313(3) where:

The business is awarded under a system of sealed, competitive bidding to the lowest or best bidder and:

1. The official or his spouse or child has in no way participated in the determination of the bid specifications or the determination of the lowest or best bidder;

2. The official or his spouse or child has in no way used or attempted to use his influence to persuade the agency or any personnel thereof to enter such a contract other than by the mere submission of the bid; and

3. The official, prior to or at the time of the submission of the bid, has filed a statement with the Department of State, if he is a state officer or employee, or with the Clerk of the Circuit Court of the county in which the agency has its principal office, if he is an officer or employee of a political subdivision, disclosing his, or his spouse's or child's, interest and the nature of the intended business. [Section 112.313(12)(b), Florida Statutes (1981).]

In a telephone conversation with our staff, you advised that the County published a notice for proposals and received two sealed bid responses. However, the proposed lease is not based solely on the proposals submitted to the County, but upon subsequent negotiations between the County and the Assistant Director. Also, you advised that the Assistant Director did not file the disclosure statement required by the competitive bidding exemption (Commission on Ethics Form 3A) either with the Clerk of the Circuit Court or with the Department of State. Under these circumstances, we cannot find that there has been compliance with the terms of the competitive bidding exemption.

Accordingly, we find that a prohibited conflict of interest would be created were the Assistant Director of the County Health Department to lease office space to the County for use by the County Health Department.