CEO 89-35 -- September 14, 1989
To: (Name withheld at the person’s request.)
SUMMARY:
A prohibited conflict of interest would be created were a microbiologist in the Office of Licensure and Certification in the Department of Health and Rehabilitative Services to be employed by a business disposing of infectious medical waste. Facilities supplying infectious waste to the microbiologist's business would be inspected and regulated by him as part of his state employment. Section 112.313(7)(a), Florida Statutes, prohibits a public employee from holding any employment or contractual relationship with any business entity which is subject to the regulation of his agency.
QUESTION:
Would a prohibited conflict of interest be created were you, a microbiologist with the Department of Health and Rehabilitative Services who is responsible for inspection and oversight of clinical laboratories, to be employed with an infectious waste disposal business?
Your question is answered in the affirmative.
In your letter of inquiry, you advise that you are employed as a microbiologist with the Office of Licensure and Certification in the Department of Health and Rehabilitative Services. In that position, you are responsible for regulation of clinical and medical laboratories through inspection, evaluation and testing, technical consultation, and monitoring of laboratory testing programs. A major portion of your duties involve on-site visits and inspections of clinical and medical labs to determine whether they comply with applicable standards and laws.
You also advise that you are considering participating in a business which would obtain infectious waste from licensed medical facilities, including clinical and medical labs, and transport such waste to approved disposal sites. As part of your State employment you would be conducting inspections and evaluations of facilities which would be supplying infectious waste to your business. Your business would also be subject to regulation by a separate office within the Department.
The Code of Ethics 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).]
The first part of this provision prohibits you from having any employment or contractual relationship with a business entity which is subject to the regulation of your agency. The term "agency" is defined in Section 112.312(2), Florida Statutes, 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 advised that offices within the Department of Health and Rehabilitative Services which are directly supervised by an Assistant Secretary are analogous to divisions of other state departments, and that offices directly supervised by those offices are the functional equivalents of bureaus. See CEO 83-35 and CEO 84-88. In accordance with the reasoning of these opinions, we find that your "agency" for purposes of the Code of Ethics is the Office of Licensure and Certification. While the business employing you would not be regulated by your agency, but rather by the county public health units and the Department of Environmental Regulation, you would hold contractual relationships with businesses supplying infectious waste to your business. These businesses would be subject to the direct regulation of your agency.
The second provision of Section 112.313(7)(a) prohibits you from having a contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of your public duties. In our view, the business relationship between you and the facilities you regulate would conflict with your responsibilities as a microbiologist in the Office of Licensure and Certification. A "conflict" or "conflict of interest" is defined as "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." Section 112.312(6), Florida Statutes. We conclude that your role in soliciting business from facilities subject to the regulation of your office would present a situation where you would be tempted to disregard your responsibility to fairly and impartially evaluate the operation and qualifications of the clinical labs. In your letter of inquiry, you also state that if a conflict is found, inspection schedules could be changed so that you would not directly inspect those facilities supplying infectious waste to your business. In CEO 87-20, we advised that displacing job responsibilities in an effort to avoid a possible conflict would impede the full and faithful discharge of public duties.
Accordingly, we find that a prohibited conflict of interest would exist were you, a microbiologist responsible for regulation of clinical labs, to operate a business to collect and transport infectious medical waste for disposal.