CEO 90-57 -- September 7, 1990

CONFLICT OF INTEREST

D.H.R.S. PUBLIC HEALTH UNIT NURSE PRACTITIONER

OWNING TRADE NEWSPAPER IN WHICH PUBLIC HEALTH

UNITS ADVERTISE NURSING VACANCIES

To: Steven Mitnick, Advanced Registered Nurse Practitioner, Lee County Public Health Unit, Department of Health and Rehabilitative Services (Ft. Myers)

SUMMARY:

No prohibited conflict of interest would be created were an advanced registered nurse practitioner, employed with a county public health unit, to own a newsletter for nurse practitioners in which other county public health units advertise for nursing vacancies. Sections 112.313(3) and 112.313(7), Florida Statutes, only prohibit a public employee from transacting business with his agency, rather than with all units of the Department in which he is employed. Under Section 112.313(12)(f), Florida Statutes, the nurse practitioner may sell advertising to the public health unit which employs him so long as each transaction does not exceed $500. CEO 81-73 is referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, an Advanced Registered Nurse Practitioner with a D.H.R.S. County Public Health Unit who privately publishes and edits a trade newspaper for nurse practitioners, to carry ads in the newsletter for employment opportunities with County Public Health Units?

Subject to the condition noted below, your question is answered in the negative.

In your letter of inquiry, you advise that you and your wife are employed as Advanced Registered Nurse Practitioners at the Lee County Public Health Unit, which is part of District 8 of the Department of Health and Rehabilitative Services. You also advise that you are the editor and publisher of a trade newspaper for nurse practitioners and certified nurse midwives. Your wife is the associate publisher and editor.

The newsletter, which is distributed to every nurse practitioner and certified nurse midwife in the State, contains both display and classified advertising. Advertising rates vary according to the size and type style of the advertisement.

You indicate that many County Public Health Units are experiencing shortages of nurse practitioners and certified nurse midwives. You have received requests from County Public Health Units to place advertisements in your newspaper for employment opportunities and question whether you may accept such advertisements.

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

DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee of his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes.]

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.]

The first portion of Section 112.313(3) prohibits a public employee from acting in his official capacity as a purchasing agent to purchase any services for his agency from a business entity of which he is an officer, partner, director, or proprietor or in which he owns a material interest. This portion clearly is not applicable to your situation because, as an Advanced Registered Nurse Practitioner, you are not in a position to purchase services for your agency.

The second portion of Section 112.313(3) prohibits you from acting in a private capacity to sell any services to your public agency. Section 112.313(7)(a) also prohibits you from having any employment or contractual relationship with a business entity that is doing business with your agency. These prohibitions would include the sale of newspaper advertisements to your agency. We previously have advised that the "agency" of a county public health unit employee is that public health unit. See CEO 88-50. Therefore, sales of classified advertisements to public health units other than the unit that employs you and your wife would not constitute the sale of services to your agency and would not be prohibited by either of these statutory prohibitions.

Although sales of advertising to the Public Health Unit in which you work generally would be prohibited, Section 112.313(12), Florida Statutes, contains several exceptions to the prohibitions noted above, including the following exemptions where

[t]he purchase or sale is for legal advertising in a newspaper, for any utilities service, or for passage on a common carrier. [Section 112.313(12)(c), Florida Statutes.]

[t]he total amount of the subject transaction does not exceed $500. [Section 112.313(12)(f), Florida Statutes.]

We have not considered employment advertisements to be "legal advertisements" because legal advertisements are made for the purpose of providing notice of particular legal or administrative actions, as required by law, rather than for the purpose of notifying the public of employment opportunities or of the availability of products or services for sale. See CEO 81-73. In that opinion, we found that a D.H.R.S. deputy district administrator could own stock in a company which published employment advertisements for a State hospital or county health department within his district, so long as the terms of the $500 exemption were met. Since that opinion was rendered, we have interpreted that exemption to apply to each transaction with an agency, rather than each series of transactions within a particular year. Therefore, we conclude that your newsletter may publish advertisements for the Public Health Unit which employs you so long as each transaction is limited strictly to $500 or less.

Accordingly, we find that no prohibited conflict of interest would be created were you, an Advanced Registered Nurse Practitioner with a D.H.R.S. County Public Health Unit who privately publishes and edits a trade newspaper for nurse practitioners, to carry ads in the newsletter for employment opportunities with other County Public Health Units and that the newsletter may contain advertisement from the Public Health Unit which employs you so long as each transaction is strictly limited to $500 or less.