CEO 88-33 -- June 9, 1988

CONFLICT OF INTEREST

SPOUSE OF D.H.R.S. FOSTER CARE COUNSELOR

PROVIDING SUBSIDIZED DAY CARE SERVICES

To: Ms. Barbara McPherson, Legal Counsel, District V, Department of Health and Rehabilitative Services (St. Petersburg)

SUMMARY:

No prohibited conflict of interest would be created were the spouse of a Department of Health and Rehabilitative Services foster care counselor to provide day care services which are regulated and partially subsidized by the Department. Section 112.313(7)(a), Florida Statutes, would not apply as the employee does not have an employment or contractual relationship with the day care center.

QUESTION:

Would a prohibited conflict of interest be created were the spouse of a Department of Health and Rehabilitative Services Foster Care Counselor to operate a subsidized day care center?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff you advised that Mr. Hector Melendez is employed as a Foster Care Counselor in District V of the Department of Health and Rehabilitative Services. In that position he is responsible for providing foster care service to dependent children and counseling and supervision to their families. You further advise that his wife has applied to be a child care provider under the Redlands Christian Migrant Association (RCMA). RCMA is currently under contract with the Department to provide subsidized child care in the County. The contract is financed with 50 percent federal funds and 50 percent State funds. In addition, RCMA must obtain 12.5 percent matching local funds. Typically, RCMA recruits potential day care providers, who then undergo the Department licensing process. Once licensed, the provider and RCMA enter into a services contract.

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 an employment or contractual relationship with a business entity which is subject to the regulation of his agency, and also prohibits a public employee from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of public duties. Here, the provision does not apply as the subject employee would have no employment or contractual relationship with the day care center.

A centralized placement system recently was instituted which allows Department counselors to make referrals to day care centers. However, all placements currently are made by the central agency. While it is possible for the subject employee to make day care referrals, the area in which his wife's day care center would operate is not in the service area covered by the office to which he is assigned as a Foster Care Counselor. Nevertheless, any attempt on the employee's part to misuse his public position to obtain a special benefit for his wife's business would be violative of Section 112.313(6), Florida Statutes.

Accordingly, we find that no prohibited conflict of interest would be created were the spouse of a Department Foster Care Counselor to operate a subsidized day care center.