CEO 90-16 -- March 8, 1990

CONFLICT OF INTEREST

DHRS EMPLOYEE IN NUTRITION PROGRAM SEEKING EMPLOYMENT WITH COMPANY CONSULTING WITH USDA REGARDING STATE NUTRITION PROGRAMS

To: (Name withheld at the person's request.)

SUMMARY:

A prohibited conflict of interest would be created were a retail operations supervisor in the Office of WIC and Nutrition of the Department of Health and Rehabilitative Services to be retained to provide consulting services to a private firm under contract with the U.S. Department of Agriculture to evaluate retailer fraud in the WIC program. The employee would be using information acquired through his public duties and not available to the general public for the benefit of himself and the consultant in violation of Section 112.313(8), Florida Statutes. In addition, while the consulting company would not be regulated by or doing business with HRS under Section 112.313(7)(a), Florida Statutes, the employment would create a continuing and frequently recurring conflict between private interests and public duties in violation of that provision. The employee would be retained to assist in evaluating the program which is his public responsibility.

QUESTION:

Would a prohibited conflict of interest be created were you, a retail operations supervisor with the Florida WIC program administered by the Department of Health and Rehabilitative Services, to be employed by a private consultant evaluating state WIC programs through a contract with the U.S. Department of Agriculture?

Your question is answered in the affirmative.

In your letter of inquiry and in telephone conversations with our staff, you have advised that you are employed by the Department of Health and Rehabilitative Services (HRS) in the Florida Women, Infants, and Children (WIC) Program as a Retail Operations Supervisor. This program provides supplemental food for eligible low-income families through issuing WIC checks which are exchanged for food at participating retail grocery stores. Your responsibilities include retailer authorization, training, and compliance enforcement.

You advise that you have been offered employment by a private consulting firm conducting a study of WIC programs in various states. This firm has been retained by the U.S. Department of Agriculture (USDA) to evaluate the prevalence of retailer fraud in the national WIC program. You envision that this study will select certain states for purposes of evaluation, but you are unsure whether Florida will be selected. Your role will include reviewing study design and the training manual for investigators, providing information on WIC client characteristics, explaining monitoring techniques, and identifying key issues in fraud control and monitoring. You also will provide information concerning how the WIC program works in Florida. You advise that you will not be asked to review the final report or be in a position to influence the conclusions of the study. You envision being employed for a total of approximately 80 hours during 1990 and 1991 and have advised your supervisor that you would be willing to take annual or compensatory leave for time spent on this private business during your work hours. You inquire whether your employment with this consultant would create a prohibited conflict of interest.

The Code of Ethics for Public Officers and Employees provides in relevant part:

DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), Florida Statutes.]

This provision would prohibit you from using information not available to the general public and gained by reason of your HRS position for your personal gain or the benefit of any other person or business entity. We find that this provision would act to prohibit your proposed employment. It is apparent that the reason you have been retained by the consultant is because of your specialized knowledge of the WIC program in Florida, specifically in the area of retail operations. As such, this situation is distinguished from that presented in CEO 83-85, where an HRS program evaluation analyst was permitted to consult with an organization conducting a study of a delinquency program it provided through a contract with HRS. In that situation, the organization was purchasing the employee's skills in evaluation rather than detailed program knowledge acquired through his duties. See also CEO 82-28. Rather, this situation is analogous to CEO 81-54, where an HRS program analyst was prohibited from offering a training program developed as part of his public duties. See also CEO 80-21. From the information you have provided, you would be retained to provide detailed information regarding the Florida WIC program in areas which are your direct responsibility as part of your public duties.

In addition, Section 112.313(7)(a), Florida Statutes, 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.

The first part of this provision would prohibit you from being employed by the company if it is regulated by or doing business with your agency. From the information you have provided, the consultant in no way is doing business with or regulated by HRS.

The second part of this provision would prohibit you from engaging in the proposed employment if it would create a continuing or frequently recurring conflict between your private interests and the performance of your duties at HRS or would impede the full and faithful discharge of those duties. Section 112.312(6) defines "conflict" as "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." In CEO 81-31, we advised that a district mental health program supervisor could not contract with a nonprofit corporation to consult with a mental health service provider which received funding through the local mental health board. In that situation, the employee would have been advising the mental health board regarding matters which were his responsibility as a private consultant. Similarly, you would be responsible in your public duties for operating a program which your private employer has been retained to evaluate. While you are not certain if Florida will be included in the study, you have indicated that the results could have ramifications for the Florida WIC program.

Accordingly, we find that a prohibited conflict of interest would be created were you, a Retail Operations Supervisor for the Women, Infants, and Children Program in the Department of Health and Rehabilitative Services, to be retained by a consultant hired by the federal government to evaluate retailer fraud in the WIC program.