CEO 91-62 -- October 25, 1991

VOTING CONFLICT OF INTEREST; CONFLICT OF INTEREST

HOSPITAL SPECIAL TAX DISTRICT COMMISSIONERS GRANTING

TO THEMSELVES, MEDICAL STAFF, AND THEIR FAMILIES,

A DISCOUNT FOR HOSPITAL SERVICES

To: James F. Heekin, Jr., Attorney for Southeast Volusia Hospital District (Orlando)

SUMMARY:

The members of the board of a hospital district are not prohibited by Section 112.3143(3), Florida Statutes, from voting on a matter to include themselves and their immediate families in a discount on the cost of medical services provided by a hospital of the district. However, the members, since they are appointed public officers, must not participate in the discount matter without disclosing their interest in the matter and filing a memorandum. Section 112.313(5), Florida Statutes, provides for voting on matters affecting a public officer's salary, expenses, or other compensation.

QUESTION 1:

Are the members of the governing board of a hospital special tax district prohibited by Section 112.3143, Florida Statutes, from voting to provide a discount, for themselves and others, on hospital charges at a hospital operated by the district?

Your question is answered in the negative.

By your letter of inquiry and telephone conversation with our staff, we are advised that Southeast Volusia Hospital District operates the Fish Memorial Hospital located in New Smyrna Beach. We are advised further that the District is an independent special tax district that is a political subdivision of the State. The District is governed by a board composed of seven commissioners appointed by the Governor to four-year terms. The District derives a portion of its revenues from ad valorem taxes levied within its boundaries. For the yearly period ending June 30, 1990, the District received approximately 3.5 million dollars in tax revenues and generated approximately 22 million dollars in patient revenues.

The Board is considering a plan which would grant "discounts" on Hospital fees and charges to the members of the Board and their immediate families and to the members of the Hospital's medical staff and their immediate families. Members of the Hospital's auxiliary, Hospital employees, and the employees' immediate families already have been granted such a discount by the Board. The discount would consist of an up to 20% reduction in the "deductible" portion of an eligible patient's bill and in the portion of the bill not covered by private insurance or Medicare, up to a maximum reduction of $1,000. The amount of Hospital revenue "lost" to such discounts would not be of a magnitude to necessitate an increase in the District's taxation, you relate.

The special act which created the District and its Board, as amended by Chapter 65-2362, Laws of Florida, provides in part:

The board of commissioners of the southeast Volusia hospital district, hereinafter called the board, shall have all the powers of a body corporate, including the power to sue and be sued under the name of the southeast Volusia hospital district, to contract and be contracted with, to adopt and use a common seal, and to alter the same at pleasure; to acquire, purchase hold, lease and convey such real and personal property as the board may deem proper or expedient to carry out the purposes of the act; to appoint and employ a superintendent and chief surgeon and such other agents and employees as the board may deem advisable; to borrow money and to issue the notes, bonds and other evidences of debt of the district thereof to carry out the provisions of this act in the manner hereinafter provided.

Our staff is not aware of any provision of general or special law which specifically precludes the Board from conferring the discount, and you relate that you likewise have found no such provision of law.

It is apparent that the members of the District's Board are appointed local officers within the meaning of the voting conflicts law. See CEO 88-18. Therefore, Sections 112.3143(3) and 112.3143(4), Florida Statutes, are applicable to your inquiry. Those sections provide respectively, in relevant part:

(3)(a) No county, municipal, or other local public officer shall vote in his official capacity upon any measure which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.

(b) However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357, or an officer of an independent special tax district elected on a one-acre, one-vote basis, is not prohibited from voting, when voting in said capacity.

(4) No appointed public officer shall participate in any matter which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained; or which he knows would inure to the special private gain of a relative or business associate of the public officer, without first disclosing the nature of his interest in the matter.

(a) Such disclosure, indicating the nature of the conflict, shall be made in a written memorandum filed with the person responsible for recording the minutes of the meeting, prior to the meeting in which consideration of the matter will take place, and shall be incorporated into the minutes. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.

(b) In the event that disclosure has not been made prior to the meeting or that any conflict is unknown prior to the meeting, the disclosure shall be made orally at the meeting when it becomes known that a conflict exists. A written memorandum disclosing the nature of the conflict shall then be filed within 15 days after the oral disclosure with the person responsible for recording the minutes of the meeting and shall be incorporated into the minutes of the meeting at which the oral disclosure was made. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.

(c) For purposes of this subsection, the term 'participate' means any attempt to influence the decision by oral or written communication, whether made by the officer or at his direction.

Section 112.3143(3) would prohibit the members of the Board from voting to provide the discount to themselves and/or members of their families. Section 112.3143(4) would prohibit the members' participation in any discount matter involving themselves or their families, absent proper disclosure.

However, the Code of Ethics for Public Officers and Employees also provides:

SALARY AND EXPENSES.--No public officer shall be prohibited from voting on a matter affecting his salary, expenses, or other compensation as a public officer, as provided by law. [Section 112.313(5), Florida Statutes.]

We have found that this provision allowed a local public officer to vote on his reimbursement of mileage expenses incurred while performing his public duties (CEO 85-19), and we also have found that under this provision a water and sewer district commissioner properly could vote on a matter concerning the public payment of his legal fees incurred in defense of a Commission on Ethics action brought against him (CEO 88-46).

Similarly, while we do not have the power to conclusively determine the meaning of the language of the District's special act quoted above, its presence, coupled with the absence of any statutory provision specifically prohibiting the Board from providing itself such a discount, leads us to the conclusion that the discount is in substance an employment or personnel benefit similar to health insurance benefits paid by one's employer or agency. As such, the discount therefore constitutes "other compensation" under Section 112.313(5), a vote on which is permitted under that section.

Accordingly, we find that the members of the subject Hospital District Board are not prohibited from voting on whether to include themselves, their families, hospital medical staff, and their families in a discount on medical services provided by the District. However, the members must not participate in the discount matter without making the proper disclosure and without filing the proper memorandum under Section 112.3143(4).

QUESTION 2:

Would the District Commissioners' granting of the discount be violative of Section 112.313(6), Florida Statutes?

Section 112.313(6), Florida Statutes, provides:

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

For purposes of this provision, the term "corruptly" is defined as follows:

'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(7), Florida Statutes.]

Since a determination of whether the intent required by Section 112.313(6) is present in a given situation can turn on subtle nuances of fact, it is difficult in the context of an advisory opinion to make findings and give definitive advice on a question involving that section. Nevertheless, we advise, under the facts you present, that we do not find that the Board members' vote on the discount would be a misuse of public position, chiefly because a vote consistent with Section 112.313(5), under the facts you present, cannot be said to be inconsistent with the proper performance of public duties, or "corrupt," within the meaning of Section 112.313(6).

This question is answered accordingly.