CEO 92-22 -- June 5, 1992

CONFLICT OF INTEREST

DEVELOPMENTAL DISABILITIES PLANNING COUNCIL

MEMBER SUBCONTRACTING WITH AGENCY FOR

PROJECT FUNDED BY THE COUNCIL

To: Joseph Krieger, Executive Director, Florida Developmental Disabilities Planning Council (Tallahassee)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a Developmental Services Planning Council member, who is appointed to the Council from the category of members representative of nongovernmental agencies and groups concerned with services to persons with developmental disabilities, to subcontract with the Division of Vocational Rehabilitation on a project funded by the Council. Section 112.313(7)(b), Florida Statutes, specifically exempts from the prohibition of Section 112.313(7)(a), practice in a particular occupation by persons holding a public office when such practice is permitted by law. Section 393.001(5), Florida Statutes, provides that the Council shall include representatives of nongovernmental agencies and groups concerned with services to persons with developmental disabilities. The Council member was appointed from this category. However, the Council member may have a voting conflict under Section 112.3143(2), Florida Statutes, which would not prevent her from voting but would require her to disclose her interest in the matter.

QUESTION:

Would a prohibited conflict of interest be created were a member of the Developmental Disabilities Planning Council, who was appointed as a representative of nongovernmental agencies and groups concerned with services to persons with developmental disabilities, to be awarded a subcontract by another State agency, where the subcontract is awarded pursuant to a request for proposals system and the member has not had any direct participation in setting the requirements for or selection of the successful proposal?

Your question is answered in the negative.

In your letter of inquiry and conversation with staff, you advise that Margaret Duggar is a member of the Florida Developmental Disabilities Planning Council ("Council"), which was established under Section 393.001, Florida Statutes, as "an interdepartmental and interagency advisory, planning, and advocacy body, with respect to the departments and agencies of the state, for programs and services affecting persons with developmental disabilities." You advise that the Council is located only for administrative purposes within the Department of Health and Rehabilitative Services ("HRS"). The 27 members of the Council are appointed by the Governor from categories prescribed by both state and federal law. The categories, you advise, include representatives of various governmental entities, representatives of nongovernmental agencies and groups concerned with services to persons with developmental disabilities, and at least one "person who is not, and never has been, engaged in the business of providing training or other services to persons having developmental disabilities." The subject Council member was appointed from the category of nongovernmental agencies and groups concerned with services to persons with developmental disabilities.

You advise that the Council is responsible, in whole or in part, for disbursing funds received by the State under the federal Developmentally Disabled Assistance and Bill of Rights Act, 42 USC s.6022. You also advise that members of the Council serve on task forces which identify potential funding projects consistent with the State plan developed jointly between the Council and HRS. The "general scope" of the recommended projects are reviewed by the Council's Programs and Services Committee, which then forwards them to the full Council for approval. You advise that contracts to implement approved projects are negotiated and secured by you, as Executive Director, pursuant to the Section 287.057(2), Florida Statutes, "Request for Proposal" process and, when authorized by law, the Council contracts directly with a particular entity. You advise that the Council's contract agreement prohibits assignments or subcontracts without "prior written approval of the Council.

You advise that on July 23, 1991, the Council contracted with the Division of Vocational Rehabilitation (DVR) of the Department of Labor and Employment Security for development of a model "Personal Assistance Services Project." You advise that the contract was amended on December 10, 1991 to clarify language and to provide specifically that "the provider will through a subcontract meet the primary objectives of the contract." DVR published notice of the Request for Proposals ("RFP") in the Florida Administrative Weekly on November 11, 1991; however, only two responses were received. One of the responses was from a private consulting firm owned by the subject Council member. You also advise that for internal administrative reasons, DVR rejected all of the proposals but announced its intention to readvertise the project.

You advise that the "Personal Assistance Services Project" originated during the Spring of 1990 at several meetings of the Council's Case Management Task Force, and on June 1, 1990, the Council's Programs and Services Committee recommended approval of $185,000 for the project. You advise that the subject member is not now, nor was she, a member of either the Case Management Task Force or the Programs and Services Committee. Additionally, she did not attend their meetings or in any way participate in the deliberations of these groups on this project.

You advise that the Council member also did not attend the March 9, 1990 meeting of the Council at which the Case Management Task Force reported on its consideration of the project, the June 1, 1990 meeting at which the Programs and Services Committee presented its recommendation to fund the project, and the September 7 and December 7, 1990 meetings at which the Case Management Task Force reported on the status of the project. She did attend the December 6, 1991 meeting at which it was reported that the RFP had been published.

You advise that the substance of the Council's contract with DVR was negotiated by Council staff in consultation with the Council's Case Management Task Force. You advise that the contract refers to the project as a "cooperative effort" between the Council and DVR. In addition to monitoring performance under the contract, you advise, Council staff and members of the Case Management Task Force will work with DVR in various capacities, including providing input on developing the revised RFP and evaluating proposals. The subject Council member's only involvement with the subcontract process will be to submit a proposal in response to the published request of DVR. However, you advise that you, DVR, and the member are concerned about whether a conflict of interest will be created if she contracts with DVR should her proposal be accepted.

Relevant sections of the Code of Ethics are as follows:

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.]

VOTING CONFLICT.--No state public officer is prohibited from voting 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; or which he knows would inure to the special private gain of a relative or business associate of the public officer shall, 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. [Section 112.3143(2), Florida Statutes.]

For purposes of Sections 112.313 and 112.3143, "public officer" is defined to include "any person elected or appointed to hold office in any agency, including any person serving on an advisory body." See Section 112.313(1) and 112.3143(1)(a), Florida Statutes.

Section 112.313(3), prohibits the Council member, a public officer, from purchasing goods or services for the Council from a business entity in which she has a material interest or holds a governing position. It also prohibits her from selling goods or services in her private capacity to her agency, the Council, with certain exceptions. Assuming that the member's response to the RFP is chosen, these prohibitions would not be applicable because the consulting firm would be contracting with DVR, a separate agency from the Council.

We observed in CEO 90-21 that Section 112.313(7)(a) generally prohibits a public officer from having a contractual or employment relationship with a business entity or agency which is doing business with, or is regulated by, his agency. However, we found that Section 112.313(7)(b), Florida Statutes, provides an exception, as it declares that Section 112.313(7)(a) shall not prohibit a public officer 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." In CEO 91-21, we determined that it was contemplated under Section 393.001(5), Florida Statutes, that some members of the Council would be affiliated with local agencies, such as school boards, which are involved with providing services to developmentally disabled persons. On that basis, we found that employment of a Council member by a county school board while it receives Council funds was permitted under Section 112.313(7)(b). For the same reason, we find that because the subject member was appointed pursuant to Section 393.001(5), Florida Statutes, from the category of representatives of nongovernmental agencies and groups concerned with services to persons with developmental disabilities, it was contemplated that she or members appointed from her category might either receive funding directly from the Council or through another entity which receives direct funding from the Council.

You also should be aware that Section 112.3143(2), Florida Statutes, generally requires State officers to disclose interests in measures on which they vote and which inure to their special private gain or that of a principal by whom they are retained. Council members are State officers for purposes of this provision. In CEO 86-86 we found that no voting conflict of interest would be created where an employee of HRS voted as a member of the Council on distribution of federal funds to his department and, therefore, no private interest of the employee was involved. However, here, a vote by the Council member relating to the project may inure to her special private gain, thereby creating a voting conflict of interest. This section does not prohibit a State officer having a voting conflict from voting as long as she discloses her interest in the matter before participating or voting and then within 15 days after the vote occurs by filing a memorandum (CE Form 8A) with the person responsible for recording the minutes of the meeting, who must incorporate the memorandum in the minutes of the meeting. This disclosure is not required if the Council member is absent from the entire meeting as opposed to temporarily absent from the meeting. See CEO 88-3. You also should be advised that Section 286.012, Florida Statutes, permits a public official to abstain from voting where there is or appears to be a conflict of interest under one of the provision of the Code of Ethics.

Finally, we would caution the Council member that the Code of Ethics also contains the following provision:

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 prohibits her from using any information for her personal benefit which is gained through her official position or developed as part of her official responsibilities as a public officer and which is not available to members of the general public. See CEO 87-70 and CEO 92-8.

Accordingly, we find that no prohibited conflict of interest would be created were the subject Developmental Services Planning Council member, who is appointed to the Council from the category of members representative of nongovernmental agencies and groups concerned with services to persons with developmental disabilities, to subcontract with the Division of Vocational Rehabilitation on a project funded by the Council. In addition, we find that a voting conflict of interest might be created were the Council member to vote on a matter relating to the project for which she anticipates subcontracting with DVR.