CEO 87-76 -- October 29, 1987

CONFLICT OF INTEREST

D.H.R.S. EMPLOYEES SEEKING EMPLOYMENT WITH

NONPROFIT COMMUNITY MENTAL HEALTH CORPORATION

To: Mr. Joseph Kennedy, Senior Personnel Manager, District II, Department of Health and Rehabilitative Services, Tallahassee

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were Department of Health and Rehabilitative Services employees to accept outside employment as mental health counselors with a nonprofit community mental health corporation where the employees are in the position in their public employment to make client referrals to their private employer. Such employment would create a continuing or frequently recurring conflict between their private interests and the performance of their public duties. CEO 86-63 is referenced.

QUESTION 1:

Would a prohibited conflict of interest be created were an employment specialist for the Department of Health and Rehabilitative Services to be employed as a mental health counselor by a nonprofit community mental health corporation?

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

In your letter of inquiry you advise that Ms. Molly A. Brewington is employed as an Employment Specialist for the Economic Services Program Office, District II, Department of Health and Rehabilitative Services. In that position she is responsible for supervising a public assistance productivity act job placement team which implements employment programs for public assistance and food stamp recipients. She also designs and implements job training programs, performs employment placement functions, provides counseling services to assist public assistance and food stamp recipients in identifying fields of work suited to their individual abilities, analyzes the local labor market, prepares performance reports, monitors program expenditures, and participates in community programs. You question whether a prohibited conflict of interest would be created were the subject employee to accept outside employment as a mental health counselor for a nonprofit community health corporation. This position would be a weekend "on-call" position providing counseling for mental health clients in crisis situations. The employee would evaluate these clients for hospitalization or release into protective custody.

The Code of Ethics for Public Officers and Employees 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).]

This provision prohibits a public officer or 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, or an employment or contractual relationship that will create a continuing or frequently recurring conflict between her private interests and the performance of her public duties or that would impede the full and faithful discharge of her public duties.

In previous opinions, we have found that the Code of Ethics for Public Officers and Employees would not prohibit Department employees from outside employment where they play no role in any contracting process between the Department and their private employer, where their public duties are unrelated to the employer and any contract with the Department, and where they are not in a position to make referrals to the private employer. See, for example, CEO 86-63. In a telephone conversation with our staff you advised that although the nonprofit community mental health corporation is a contractor for the Department, the subject employee has no involvement with the contracting process or any contract by virtue of her public position. However, you further advised that the employee would be in a position to make client referrals to the private employer in her public capacity. In our opinion, the employee's ability to make such referrals to her private employer would create a continuing or frequently recurring conflict between her private interests and the performance of her public duties. As defined by Section 112.312(6), Florida Statutes, "'conflict' or 'conflict of interest' means a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." Although the public and private interests of the employee would not necessarily be in conflict in some instances, we can envision situations in which the employee's regard for the interests of her private employer would cause her to be influenced when evaluating a public client.

Accordingly, we find that a prohibited conflict of interest would exist were an Employment Specialist for the Department of Health and Rehabilitative Services to be employed as a mental health counselor by a nonprofit community health corporation where she is in a position in her public capacity to make client referrals to her private employer.

QUESTION 2:

Would a prohibited conflict of interest be created were a public assistance specialist for the Department of Health and Rehabilitative Services to be employed as a mental health counselor by a nonprofit community mental health corporation?

Under the circumstances presented, this question also is answered in the affirmative.

In your letter of inquiry you advise that Ms. Susie M. McWhite is a Public Assistance Specialist for the Economic Services Program Office, District II, Department of Health and Rehabilitative Services. As a Public Assistance Specialist, she is responsible for determining initial and continuing eligibility of individuals for public assistance, Medicaid, Public Medical Assistance, and Food Stamps. In this role she also counsels clients in both financial and family matters in an effort to resolve their problems through the use of agency services and other community resources. You question whether a prohibited conflict of interest would be created were this employee to work as a crisis intervention counselor for the nonprofit community mental health corporation. This position would require the employee to evaluate people in crisis situations who are suffering from depression, nervous disorders, psychosis, alcoholism, and homicidal and suicidal tendencies.

In a telephone conversation with our staff you have advised that while the nonprofit community mental health corporation is a contractor for the Department, the employee has no involvement with the contracting process. Also, her public duties are unrelated to the private contractor and any contracts with the Department. However, you have advised that the employee would be in a position to make client referrals to the private employer in her public capacity. As in Question 1, above, we are of the opinion that the employee's ability to make such referrals to her private employer would create a continuing or frequently recurring conflict between her private interests and the performance of her public duties.

Accordingly, we find that a prohibited conflict of interest would be created were a Public Assistance Specialist for the Department of Health and Rehabilitative Services to be employed as a mental health counselor by a nonprofit community mental health corporation where the employee is in a position in her public capacity to make client referrals to her private employer.

QUESTION 3:

Would a prohibited conflict of interest be created if a human services counselor supervisor for the Department of Health and Rehabilitative Services to be employed as a crisis intervention counselor by a nonprofit community mental health corporation?

Under the circumstances presented, this question is answered in the affirmative.

In your letter of inquiry you advise that Ms. Lois P. Stevens is a Senior Human Services Counselor Supervisor at Florida State Hospital for the Department of Health and Rehabilitative Services. In that position, she is responsible for screening, training, evaluating, and supervising human service counselors. She also develops program policies and procedures and participates in team diagnostic and technical staff conferences. She is further responsible for providing individual and group therapy to patients, initiating and coordinating referrals to treatment support programs, and analyzing and documenting client progress in order to ensure the proper implementation of treatment objectives. You question whether a prohibited conflict of interest would be created were the subject employee to accept outside employment with the nonprofit community mental health corporation as a crisis intervention counselor for individuals suffering from acute symptoms of mental illness. This position would be an "on-call" position during nonworking hours.

Following the rationale of Question 1 and 2, above, we are of the opinion that the subject employee's ability to initiate and coordinate client referrals would create a continuing or frequently recurring conflict between her private interests and the performance of her public duties.

Accordingly, we find that a prohibited conflict of interest would be created were a Senior Human Services Counselor Supervisor at the Florida State Hospital, Department of Health and Rehabilitative Services, who is responsible for initiating and coordinating referrals to treatment support programs, to accept employment as a crisis intervention counselor with a nonprofit community mental health corporation.