CEO 90-2 -- January 24, 1990

CONFLICT OF INTEREST

D.H.R.S. PSYCHIATRIST AT STATE HOSPITAL

CONTRACTING WITH MENTAL HEALTH CENTER,

HAVING A PART-TIME PRIVATE PRACTICE,

AND SERVING IN NATIONAL GUARD

To: Dr. Jarrett Black, Senior Physician, G. Pierce Wood Memorial Hospital, Department of Health and Rehabilitative Services (Arcadia)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were a Senior Physician with a State Hospital to contract with a local mental health center, to engage in private practice during his off-duty hours, and to serve in the National Guard. CEO 86-24 and CEO 86-30 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, a Psychiatrist with a State mental hospital, also to work for a mental health clinic, to engage in private practice during your off-duty hours, and to serve in the National Guard?

Your question is answered in the negative, subject to the conditions noted below.

In your letter of inquiry, you advise that you are employed as a Senior Physician-Coordinator at a State mental hospital, which is a position under the Selected Exempt Service. You supervise 27 physicians and one secretary, monitor their performance and serve as a consultant to them, and serve on hospital committees, task forces, and as Chairman of the Utilization Review Committee. You do not have any patients directly under your care but act in a supervisory capacity over the physicians who actually provide medical and psychiatric services to the patients in the hospital.

As an independent contractor, you also operate the medication clinic of the local mental health center one afternoon each week. You use annual leave time for this purpose. This mental health center has a contract with the Department of Health and Rehabilitative Services (DHRS) to provide community mental health services. One of the primary functions of the clinic is to serve former patients of State mental hospitals, and approximately twenty per cent of the patients that you serve at the medication clinic are former patients of the State hospital which employs you. In your work at the mental health center, you occasionally may sign the appropriate Baker Act forms to have a patient evaluated or treated at a receiving facility. As the receiving facility is responsible for determining whether a patient should be placed in a State hospital, your signing the forms would not directly involve the State hospital which employs you.

In addition, you privately practice psychiatry from an office in your home during the evening and on weekends. As a psychiatrist in private practice, you have privileges at the local general hospital. However, you do not hospitalize patients at the general hospital, as it is your opinion that you could not adequately care for the hospitalized patient and continue to adequately perform your duties at the State hospital. Therefore, you require the patients under your care to have a private family physician with whom you can collaborate and who will hospitalize the patient should the need arise. Cases which cannot be handled by the family physician at the local hospital are transferred to either a private psychiatric hospital or the psychiatric section of another hospital, with physicians at the hospital caring for the patient. Although you have not accepted any patient who formerly was hospitalized at the State hospital which employs you, you question whether you may do so.

Finally, you serve as a battalion surgeon with the rank of major in the Florida National Guard. You are required to participate in a mandatory two week training drill each year. Other than the training period, your participation in the National Guard has not required your absence from the State hospital.

In regard to your question, Section 112.313(7)(a), Florida Statutes, 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.

This provision prohibits you from having any contractual relationship with a business entity which is doing business with your "agency."

In a previous opinion, CEO 86-24, we found the "agency" of a Senior Physician at the same State hospital which employs you to have been District Eight of the Department of Health and Rehabilitative Services. As the mental health center is under contract with the Department, it is reasonable to assume that it is doing business with District Eight of the Department. In CEO 86-24, however, we determined that the State physician's contemplated employment with an emergency service provider which contracted with the hospital was permitted under the following provision:

CONSTRUCTION.--It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, Florida Statutes, (1987).]

We believe the analysis of that opinion is applicable here, as the information you have provided does not indicate that your contractual relationship with the mental health center interferes with the performance of your public duties. We do suggest, however, that you check with the proper authorities to ensure that your use of annual leave one afternoon each week for a second job is consistent with applicable Department rules and regulations.

Nor have we been provided with information indicating that the Code of Ethics would prohibit you from practicing psychiatry from your home during hours when you are not required to work at the State hospital. In CEO 86-30, we opined that a psychologist at a State hospital was not prohibited from part-time private practice as long as his clients were not actively affiliated with the hospital's services. Although in that opinion the psychologist did not accept former patients of the hospital, we believe that the analysis of that opinion is applicable to your situation as long as your patients are not actively affiliated with the State hospital which employs you. See also CEO 85-8. We must caution you, however, that use of your official position or of the resources of the hospital in the solicitation or counseling of private clients could be found to violate Section 112.313(6), Florida Statutes, which states:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall 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.

Finally, you ask if your service as a battalion surgeon with the National Guard would violate the Code of Ethics. Since the Florida National Guard is not doing business with or regulated by District Eight of the Department, and your service otherwise does not appear to interfere with your public duties, we do not believe that your service would violate Section 112.313(7)(a), Florida Statutes. We also note the policy expressed in Section 250.481, Florida Statutes, which prohibits the denial of employment or of retention in employment because of any obligation as a member of a reserve component of the Armed Forces.

Accordingly, we find that no prohibited conflict of interest would be created were you to engage in private practice during your off-duty hours while remaining employed at the State hospital. Nor would the Code of Ethics prohibit you from contracting with a mental health center to operate the medication clinic, provided that your use of annual leave for this purpose is consistent with applicable rules, regulations, and policy. Finally we find that your service as a battalion surgeon while also employed as a psychiatrist at the State hospital does not violate any provision of the Code of Ethics.