CEO 89-30 -- July 27, 1989

CONFLICT OF INTEREST

D.H.R.S. NORTH FLORIDA EVALUATION AND

TREATMENT CENTER RADIO-TELEVISION PRODUCER

CONTRACTING WITH D.H.R.S. PROVIDER TO PRODUCE

VIDEOTAPES USING THE CENTER'S VIDEO FACILITIES

To: Evelyn Sapp, Staff Attorney, North Florida Evaluation and Treatment Center (Gainesville)

SUMMARY:

No prohibited conflict of interest was created where a Radio-Television Producer Director employed by the D.H.R.S. North Florida Evaluation and Treatment Center contracted with a business to produce training videotapes and used Center video facilities outside of his normal working hours to produce the videotapes, where the business had been awarded a contract to provide training and training materials for the Department's Alcohol, Drug Abuse and Mental Health Program Office. As the employee did not participate in the Program Office's contracting process and as the Center and the Program Office are different "agencies," for purposes of the Code of Ethics, Sections 112.313(3), 112.313(7), and 112.3185(2), Florida Statutes, would not have prohibited the employee from contracting with the business. Under the circumstances presented, it does not appear that the employee's actions violated Section 112.313(6), Florida Statutes, because the Program Office's RFP and contract offered the use of the Center's video facilities and because the employee was not responsible for the initial offer of his private services to the business.

QUESTION:

Was a prohibited conflict of interest created where a Radio-Television Producer Director employed by the Department of Health and Rehabilitative Services North Florida Evaluation and Treatment Center contracted with a business to produce training videotapes and used Center video facilities outside of his normal working hours to produce the videotapes, where the business had been awarded a contract to provide training and training materials for the Department's Alcohol, Drug Abuse and Mental Health Program Office?

Through your letter of inquiry and subsequent correspondence with you, the subject employee, and his attorney, we have been informed of the following circumstances. Mr. Walt Jenkins is employed as a Radio-Television Producer Director at the North Florida Evaluation and Treatment Center (NFETC), which is operated as part of District 3 of the Department of Health and Rehabilitative Services. In that capacity, according to his position description, he is responsible for producing video tapes; providing training seminars for staff in the use of video equipment, particularly for vocational video instructional classes for clients; managing and supervising temporary staff, including developing projects and supervising production of video projects for institutional, district, and State agency use; coordinating the training of interns and volunteers; developing projects for video presentations; and maintaining video and audio equipment.

In March of 1988 the Alcohol, Drug Abuse and Mental Health Program Office of the Department advertised requests for proposals (RFP's) for training Continuity of Care Management System case managers. The RFP's called for (1) a field-tested core curriculum to teach the case managers advocacy skills and the fundamentals of planning, implementing, and controlling services to clients; (2) a set of field-tested enhanced curricula to improve case managers' competency with children, adolescents, the elderly, and substance abusers; (3) training for approximately 80 case manager supervisors to prepare them as case management trainers; and (4) training for the approximately 500 case managers. The Program Office is under the direct supervision of the Assistant Secretary for Program Planning, who is directly supervised by the Secretary of the Department.

Services under the contract were to be provided in six phases, each having products to be delivered to the Department on pre-established dates. The RFP requirements for phase two included the following note to prospective bidders:

NOTE: The North Florida Evaluation and Treatment Center has offered to make its video facilities and expertise available for production at little or no cost. Interested bidders should contact Mr. DeVaughn Slone, P.O. Box NFETC, Gainesville, FL 32601, (904)375-8484 or Suncom 641-1288 for further information.

The subject employee played no role through decision, approval, disapproval, recommendation, or preparation of any part of the RFP. Additionally, no one at NFETC played a role in the preparation of any part of the RFP. The contract manager has confirmed that the actual language regarding NFETC was never drafted, approved, discussed, or reviewed by or with any employee of NFETC prior to the execution of the contract.

The contract manager has informed you that the offer of NFETC facilities and expertise was made to the Department as part of an informal discussion he had with the Center Administrator of NFETC at a senior management conference in January, 1988. At that time the Administrator directed the contract manager to contact the Director of the NFETC Learning Resource Department, Mr. Slone, to iron out the details of the offer. The contract manager telephoned Mr. Slone, who advised him of the nature of the capabilities of the facilities and the conditions that the contractor would be responsible for satisfying. As the contract manager had no recollection of the content of that conversation at the time he prepared the RFP, he simply included the note in order to ensure that prospective bidders would contact Mr. Slone directly.

According to Mr. Slone, he informed the contract manager that NFETC had a complete video studio and that the recipient of the contract would be told the following: (1) that the name of a videographer would be offered to the provider as someone possessing the skills to produce a quality documentary video and that the provider would have to pay the videographer $1,000.00 per each requested five to ten minute video production; (2) that the provider would be responsible for paying any travel, hotel, and meal expenses; and (3) that the provider would be responsible for paying NFETC for any tapes used from its stock in the production and duplication of the tapes.

In March of 1988 Mr. Slone provided this information to a representative of an institute that was interested in bidding on the contract and offered the name of an individual who was not a State employee as the potential videographer. After speaking with Mr. Slone, the representative's understanding was that the provider awarded the contract would be responsible for the payment of videography services. Within the same month Mr. Slone received a call from a representative of a corporation that also was interested in bidding on the contract; he provided her with the same information given to the other prospective bidder.

The corporation was awarded the training contract by the Program Office, to begin on June 10, 1988 and to end on December 10, 1988. As specified in the RFP, the contract was to be performed in six phases, with tasks to be performed and products to be provided to the Department on set dates. Payments were to be made to the corporation as invoiced at the end of each phase and approved by the contract manager. The fixed price contract was based on eleven "deliverables" listed in the contract with set dollar amounts totaling $130,000.00.

The contract contemplated the development of training materials, such as an introductory videotape on the role and responsibilities of case managers and two videotapes on modeling correct skills of negotiation, advocacy, and diagnosis. Among the "special provisions" of the contract were the following two paragraphs:

Staffing: The contractor will make every practical effort to use the additional staff and technical resources available from the North Florida Evaluation and Treatment Center and the Florida Mental Health Institute, wherever they will result in a more thorough and comprehensive project outcome. In particular, it is strongly recommended that the contractor consider the use of additional trainers from FMHI, given the large number of trainees, the amount of information to be covered, and the short time frames involved.

Subcontractors: All consultants and subcontractors of any type who are employed or used in any form in producing the work products of this contract will be approved in advance by the department's contract manager.

The contract language regarding the use of NFETC facilities is unique to this contract, as far as you have been able to determine. To your knowledge no similar provisions regarding the use of NFETC facilities have been contained in a contract with a private, for profit vendor.

In July of 1988 Mr. Slone received another call from the representative of the corporation, this time informing him that the corporation had been awarded the contract. He informed the representative that he needed to offer her the name of the subject employee as the potential videographer, stating that the employee was NFETC's Producer/Director and would do the best possible job. He further explained that he had had to offer the previously named videographer's services for a production of a District of the Department and that the only other person in their existing pool of talent was in Europe. He then requested that the representative visit NFETC to examine the facilities, to review tapes to determine the quality of their work, and to meet with the subject employee in order to decide whether to take their offer of services. The meeting was held on July 26, 1988, and the representative elected to make use of all the offered services, according to Mr. Slone.

The corporation subsequently contacted the subject employee and contracted with him as a videographer, to produce several videotapes. On September 15, 1988, he took annual leave to meet with representatives of the corporation, who reviewed his credentials as a videographer, discussed the project with him, and offered to hire him to do the work. Apparently no subcontract with either the employee or with NFETC was submitted to the contract manager for his approval prior to the employee's beginning work for the corporation. Although a proposed written contract with the corporation was sent to the employee in October, specifying the payments to be made to him as an independent contractor and the services to be rendered, he did not execute the document. At this time the president of the corporation raised questions with a number of Department employees about the propriety of paying the subject employee for his services directly rather than through NFETC.

When the dispute arose, you provided a legal memorandum to the NFETC Administrator suggesting that no attempt be made to interfere with the relationship between the subject employee and the corporation because of potential legal liability on the part of the Department. Apparently as a result of several conversations between the president of the corporation, the contract manager, Mr. Slone, and other Department employees, the subject employee was not paid for his work. Although the employee threatened to refuse to finish the substantially completed project because of nonpayment, his superiors at NFETC requested that he complete work on the videotapes. He did so, and the videotapes were mailed to the corporation in November by Mr. Slone.

The employee produced the videotapes during weekends, evenings, and holidays and claimed annual leave for any State time spent working for the corporation, with the prior approval of his supervisor, Mr. Slone. His duties under the contract were similar to those of his State employment in that approximately 35 percent of his time as a State employee requires similar skills to those used by him as a subcontractor. He used State equipment in his work for the corporation, but you advise that this was available to him only in his capacity as a subcontractor by virtue of the contract between the corporation and the Program Office.

You advise that the Department has no policy relating directly to the use of NFETC facilities. The past practice of NFETC in this regard has been either to wholly produce its own videotapes in-house for its own use, using the facilities as a treatment, training, and education resource for the residents, or to work with other State agencies and entities in the production of videotapes--not to work with private, for profit corporations. In past instances of working with outside agencies, either the agency has paid the videographer directly or the videographer was paid through NFETC. If payment was made through NFETC, the videographer was not a State employee.

Your inquiry raises two primary issues under the Code of Ethics for Public Officers and Employees: first, whether the subject employee was prohibited from contracting with the corporation to produce the videotapes; and secondly, whether, if he was not prohibited from doing the work, any provision of the Code of Ethics was violated by the manner in which the work was solicited or performed. Initially, you have referenced Section 112.3185, Florida Statutes, which provides in relevant part:

No agency employee who participates through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, or auditing or in any other advisory capacity in the procurement of contractual services shall become or be, while an agency employee, the employee of a person contracting with the agency by whom the employee is employed. [Section 112.3185(2), Florida Statutes (1987).]

Under the circumstances you have described, it is apparent that the subject employee had no responsibility for, or participation in, the preparation of either the RFP or the language in the contract which was executed between the corporation and the Program Office. Therefore, we find that this provision of the Code of Ethics would not have prohibited him from being an employee of the corporation.

The Code of Ethics also provides:

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 of 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.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1987).]

This first portion of this provision prohibits a public employee from acting in an official capacity as a purchasing agent to purchase any services for his agency from a business entity of which he is an officer, director, partner, proprietor, or owner of more than a five percent interest. Under the circumstances presented, however, we do not find any indication that the subject employee ever acted to purchase services for his agency.

The second portion of Section 112.313(3) prohibits a State employee from acting in a private capacity to sell any services to his "agency," a term which is defined in Section 112.312(2), Florida Statutes. In a previous opinion, CEO 81-2, we concluded that the "agency" of an employee of NFETC is District 3 of the Department of Health and Rehabilitative Services. It is clear that the employee never entered into any contract with District 3 or with NFETC. Even if the corporation's representatives were under the impression that it had contracted with NFETC for the production of the videotapes, it does not appear that it was the understanding of any employee of NFETC that the subject employee was selling his videography services to NFETC on his own time, above and beyond those services provided in his official capacity as the Center's Producer/Director, in exchange for payment from NFETC. Therefore, we conclude that Section 112.313(3) did not bar the subject employee from producing the videotapes.

More to the point is the following provision of the Code of Ethics:

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

As noted above, the subject employee's "agency" is District 3 of the Department. Although he may have had a contractual relationship with the corporation which was under contract to the Department's Alcohol, Drug Abuse and Mental Health Program Office, the definition of "agency" provided in the Code of Ethics and our past opinions lead us to conclude that the corporation was not doing business with the employee's "agency." In CEO 81-89 we advised that an employee of a District of the Department could provide consulting services to the Department's Mental Health Program Office, on the basis that the District and the Program Office were separate agencies. Similarly, here, we find that District 3 and the Program Office are separate and distinct "agencies" for purposes of the Code of Ethics, although they are part of the same Department. On this basis we conclude that the subject employee did not have a contractual relationship with a business entity that was doing business with his agency.

Section 112.313(7)(a) also prohibits a public employee from having any contractual relationship that will create a continuing or frequently recurring conflict between his private interests and his public duties or that would impede the full and faithful discharge of his public duties. In CEO 87-71 we advised that this prohibition would keep an employee of the Bureau of Archaeological Research, Department of State, from entering into a contract for professional services with a business entity if the Bureau also could provide the same services under a similar contractual relationship. We noted that if a job opportunity for the employee were one which the Bureau could not or would not do, he could accept it as long as he would have no part in the decision-making process of the Bureau for project acceptance or denial (which would give the appearance of a misuse of public position), did not use agency resources, and did not allow the private work to conflict with his public duties.

Here, it does not appear that the subject employee played any part in whatever decision-making process might have occurred at NFETC regarding whether NFETC would or could produce the videotapes for the corporation as part of its official work. Rather, it appears that his supervisor was responsible for originally providing his name to the corporation. In addition, the work was performed on the employee's off duty time. Nor is there any reason to believe that the employee's videography work for the corporation would be continuing or frequently recurring in nature. Finally, it appears that there is no other relationship between the corporation and NFETC which could be compromised because of the employee's work for the corporation. For these reasons, we conclude that the employee's work for the corporation did not present him with a continuing or frequently recurring conflict of interest or impede the full and faithful discharge of his public duties.

Sections 112.3185, 112.313(3), and 112.313(7)(a) are the only provisions of the Code of Ethics which could have banned the subject employee from contracting with the corporation to produce the videotapes. As we have found each of these sections inapplicable under the circumstances presented, we conclude that the employee could have contracted with the corporation without violating the Code of Ethics. Next, we examine the issue of whether the manner in which the work was solicited or performed violated any provision of the Code of Ethics.

In both CEO 81-89 and CEO 87-71 we cautioned against a public employee's use of public materials and equipment for private benefit in consulting activities, noting that this would be prohibited by Section 112.313(6), Florida Statutes, which provides:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

For purposes of this provision, the term "corruptly" is defined as follows:

'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(7), Florida Statutes.]

In previous opinions, such as CEO 82-28 and CEO 85-10, we have refused to reach a final conclusion as to whether an employee's actions constituted a misuse of his public position in violation of Section 112.313(6), because the statute requires a determination of intent which must be reached from an examination of all relevant circumstances and evidence. However, as we did in those opinions, we will endeavor here to make such observations as are possible from the circumstances presented.

Absent a misuse of public position, we are aware of no reason why a public agency could not offer the use of its facilities, personnel, or resources to a private business entity in conjunction with a contract between the agency and the business. We can envision circumstances where doing so would minimize the costs to be paid by the agency under the contract, thereby serving a public purpose. However, if doing so was not to the benefit of the agency, but rather was intended to benefit the business entity or another person or entity, we are of the opinion that such an act would constitute the willful use of public position or public resources within one's trust, in a manner inconsistent with the proper performance of public duties, to secure a special privilege, benefit, or exemption for another.

We have not been provided with sufficient information to determine whether the Program Office's ambiguous offer of the use of NFETC facilities, expertise, and staff resources through the RFP and the contract resulted in any benefit to the Department through reduced contract costs. Nor do we feel that we have sufficient information to determine that there was any intent on the part of any State employee to benefit the contracting corporation. Quite possibly the language in the RFP and the contract was a result of miscommunication between NFETC, the Program Office, and the contractor; the language apparently has resulted in several different understandings of the responsibilities of everyone involved in the production of the videotapes. However, it is clear that the subject employee played no role in offering the use of State facilities to the corporation and we, therefore, find insufficient evidence in the record before us to conclude that he violated Section 112.313(6) in this regard.

We also have expressed concern for a potential violation of Section 112.313(6) where a public employee is contacted in his official capacity about services his agency may perform, but instead offers his services in a private capacity for private gain. For example, in CEO 80-21, we advised that a State employee should not offer his services as a consultant to organizations whose requests for assistance have been denied by his agency. There, we raised the specter of an organization requesting assistance from an agency, being denied by an employee of that office, and later being contacted privately by the employee with an offer to provide the service. Again, however, from the information provided to us it does not appear that the subject employee was the one who took the initiative to offer his private services to representatives of the corporation. Rather, this role appears to have been played by the employee's supervisor. Therefore, we conclude from the circumstances presented that there is insufficient evidence to conclude that the employee violated Section 112.313(6) in this regard.

Finally, we see a potential violation of Section 112.313(6) in the subject employee's use of public resources within his trust, the video facilities at NFETC, for his private gain. In previous cases we have found that the use of public resources to further one's private business is violative of this prohibition and, as noted in the opinions above, we have cautioned public employees against such a practice.

Clearly, the subject employee used the resources of NFETC in connection with what he considered to be private work. The contract provision, which states that the contractor will make every practical effort to use the additional staff and technical resources available from NFETC, however, places a different twist on what otherwise would be the use of public resources for private benefit. By ostensibly authorizing the use of NFETC facilities to produce some of the training materials contemplated by the contract, the contract (under one interpretation, at least) would appear to have allowed any videographer, whether employed at NFETC or not, to use the NFETC facilities to produce the videotapes. If this was the case, and we note that this appears to have been the understanding of the NFETC employees involved here, then the subject employee would not have had to use his public position to gain access to the Center's video facilities and also would not have received any special privilege or benefit not available to any other videographer who might have contracted with the corporation. Therefore, given the language in the contract and the other circumstances presented here, we find that there is insufficient evidence to conclude that the subject employee violated Section 112.313(6) through his use of the NFETC video facilities.

Accordingly, we find that no provision of the Code of Ethics would have prohibited the subject employee from contracting with the corporation to produce the videotapes. We also find that under the circumstances presented by the record before us there is insufficient evidence from which to conclude that he misused his public position in violation of the Code of Ethics with respect to the manner in which the videotaping work was solicited or accomplished.

As this opinion concerning the subject employee was requested by the Administrator of NFETC, who has the authority to hire and terminate the employee and therefore has standing to make such a request under Section 112.322(3), Florida Statutes, our opinion is not intended to address the propriety of the conduct of any other public employee involved in this situation. Nor do we intend to comment on the contractual rights or the copyright interests of any person or entity, which we understand may be the subject of future litigation. Lacking the legal authority to investigate the facts which underlie this opinion, we do not represent that the circumstances described above are findings of fact; as provided in Section 112.322(3), the opinion is not binding if material facts have been omitted or misstated.

Finally, we would offer two suggestions to any agency which may be considering authorizing the use of public facilities, personnel, or other resources in connection with a contract with a private entity. First, we suggest that the agency document the nature and extent of the public purpose to be served through the private use of public resources. Secondly, we suggest that the intent of the parties and the contract language be made clear regarding the extent to which public resources will be available for the use of the private contractor.