CEO 84-105 -- October 18, 1984

CONFLICT OF INTEREST

D.O.A.H. HEARING OFFICER REPRESENTING DEPARTMENT OF CORRECTIONS IN FEDERAL COURT CASE

To: William C. Sherrill, Jr., Hearing Officer, Division of Administrative Hearings, Department of Administration

SUMMARY:

No prohibited conflict of interest would be created were a hearing officer with D.O.A.H. assigned to hospital cost containment hearings to continue to represent the Department of Corrections in a federal court case involving inmates of the Florida correctional system. As the hearing officer will not handle hearings involving the Department or the Department of Legal Affairs, and as hospital cost containment matters do not involve either of these Departments, the continued legal representation of the Department of Corrections would not interfere with the full and faithful discharge of public duties.

QUESTION:

Would a prohibited conflict of interest be created were you, a Hearing Officer with the Division of Administrative Hearings assigned to hospital cost containment hearings, to continue your legal representation of the Department of Corrections in a federal court case involving inmates of the Florida correctional system?

Your question is answered in the negative under the conditions specified below.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that you have represented the Department of Corrections in a class action case in federal court brought by the inmates of the Florida correctional system against the Department of Corrections on the issues of overcrowding in the prison system and delivery of medical care. You represented the Department as an Assistant Attorney General from 1975 through 1979, when you entered private practice. At that time, you contracted with the Department and the Department of Legal Affairs to continue representing the Department as a Special Assistant Attorney General. You advise that the State is in the process of implementing both a 1979 settlement with respect to the "overcrowding" issue and a 1981 settlement with respect to the medical care issue.

You also advise that recently you left private practice to begin work as a Hearing Officer with the Division of Administrative Hearings, Department of Administration, assigned to hospital cost containment hearings under Section 395.509(7), Florida Statutes. In this position, your primary responsibility will be to conduct hearings with respect to the budgets of hospitals resulting from disagreements by the hospitals with decisions made by the Hospital Cost Containment Board of the Department of Insurance. The Board does not regulate any aspect of health care of the Department of Corrections, and you do not anticipate that the Department or the Department of Legal Affairs will be involved with hearings before the Board.

You advise that it is possible that you may be assigned to other types of hearings to the extent that cost containment hearings do not occupy all of your time. If that occurs, you state that you will not handle any hearings in which either the Department of Corrections or the Department of Legal Affairs is involved.

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 (1983).]

This provision prohibits a State employee from having any contractual relationship with an agency which either is doing business with, or is subject to the regulation of, his agency. We note that under the A.P.A. hearing officers with the Division of Administrative Hearings are authorized to invalidate rules of State agencies and to enter recommended orders in cases referred to the Division by State agencies.

However, we do not decide whether the Department of Corrections or the Department of Legal Affairs is doing business with or subject to the regulation of the Division, because of the following provision of the Code of Ethics:

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 (1983).]

In our view, your continued representation of the Department of Corrections under the circumstances and conditions you have specified would not interfere with the full and faithful discharge of your public duties as a Hearing Officer. With respect to hospital cost containment matters, which will be your primary, if not exclusive, responsibility as a Hearing Officer, neither the Department of Corrections nor the Department of Legal Affairs will be involved. Similarly, if you do not handle hearings in which either of these Departments is a party or in which the Department of Legal Affairs serves as counsel, your relationship with those Departments would have no impact on the decisions which you would make as a Hearing Officer.

Accordingly, we find that no prohibited conflict of interest would be created were you to continue your legal representation of the Department of Corrections in the federal class action suit while being employed as a Hearing Officer with the Division of Administrative Hearings.