CEO 90-27 -- March 8, 1990

CONFLICT OF INTEREST

DEPARTMENT OF CORRECTIONS PHARMACIST

EMPLOYED BY PHARMACY CONTRACTING TO PROVIDE

DRUGS TO INSTITUTION

To: John W. Goodman, Jr., Pharmacist, Calhoun Correctional Institution, Department of Corrections (Blountstown)

SUMMARY:

Section 112.313(7)(a), Florida Statutes, would prohibit a pharmacist employed by an institution within the Department of Corrections from privately working for a pharmacy which provides drugs to the institution. Here, the pharmacist would be employed by a business entity doing business with his agency.

QUESTION:

Would a prohibited conflict of interest be created were you, a pharmacist employed by a Department of Corrections institution, to accept employment with a privately owned pharmacy which contracts to provide drugs to the institution?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you are employed as a pharmacist with the Department of Corrections, Calhoun County Correctional Institution. Your primary duty as a pharmacist with the Institution is to fill prescriptions. The physician on staff determines whether an inmate needs medication and writes the prescription, and you fill the prescription from the Institution's inventory. If you do not have a particular drug, you order it from a wholesaler. If the wholesaler cannot provide the drug quickly enough to satisfy the physician, however, you attempt to have the drug purchased from the nearby hospital or from a local pharmacy which contracts with the Institution to provide drugs at specified prices.

You advise that approximately 2,000 prescriptions are filled at the Institution each month. About 100 of those prescriptions are filled by drugs purchased from the local pharmacy. You believe that the number of drugs filled by the pharmacy will decrease in the future, however, as you have attempted to increase the Institution's inventory.

The pharmacy has offered you a part-time position while its current pharmacist is on leave. You wish to know if you can accept this part-time position without violating the Code of Ethics.

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 being employed by a business entity which is doing business with your "agency." Your agency would be the region of the Department of Corrections in which the Correctional Institution is located. See CEO 88-79. Therefore, Section 112.313(7)(a) would prohibit you from being employed by the local pharmacy, as the pharmacy has contracted to provide drugs to the Institution.

You refer to Section 112.313(7)(b), Florida Statutes, and ask whether this exemption applies to your situation. Section 112.313(7)(b) states:

This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance.

We find that this exemption does not apply here, for two reasons. First, rather than prohibiting you from practicing your profession entirely, under the circumstances presented Section 112.313(7)(a) prohibits you from working for the pharmacy which is under contract with the Correctional Institution and does not prohibit you from working for other pharmacies. Secondly, we are unaware of any law that requires or permits a State-employed pharmacist also to privately practice pharmacy.

We bring to your attention, however, Section 112.313(12), Florida Statutes, which provides several exemptions to the prohibitions of Section 112.313(7)(a). As we lack the information to determine whether any of these exemptions may apply here, you may wish to review these exemptions to determine if any applies to your situation.

Accordingly, we find that while serving as a pharmacist at the Correctional Institution, you are prohibited from accepting a part-time position with a pharmacy contracting to provide drugs to the Institution.