CEO 92-54 -- December 3, 1992

CONFLICT OF INTEREST

DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY INFORMAL DISPUTE

RESOLUTION UNIT EMPLOYEE PREPARING TRANSCRIPTS OF CASES

ON APPEAL FROM DISTRICT OF JUDGE OF COMPENSATION

CLAIMS OUTSIDE OF AREA SERVED BY THE EMPLOYEE

To: Michael Moore, Attorney, Florida Department of Labor and Employment Security (Tallahassee)

SUMMARY:

A prohibited conflict of interest would not be created under either Sections 112.313(3) or 112.313(7)(a), Florida Statutes, were an employee of the Department of Labor and Employment Security, who serves as a Workers' Compensation Coordinator III with the Informal Dispute Resolution Unit, on her own time and using her own resources, to continue to prepare transcripts of cases on appeal arising from a district of a Judge of Compensation Claims outside of the area that her Informal Dispute Resolution Unit usually serves, as long as neither she nor any of the subordinates she supervises had any responsibility for attempting to resolve the cases through informal dispute resolution, and as long as remuneration for her work does not come from the Department or from any trust fund administered by the Department.

QUESTION:

Would a prohibited conflict of interest be created were an employee of the Department of Labor and Employment Security, who serves as a Workers' Compensation Coordinator III with the Informal Dispute Resolution Unit, in her private capacity, to be designated by the Judge of Compensation Claims from a district outside of the area that her unit serves to prepare transcripts of cases on appeal from the Judge's district?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry and your conversation with our staff, you advise that you are requesting this opinion on behalf of Shirley Gooding, Acting Secretary of the Department of Labor and Employment Security. You advise that since approximately 1975, the District IV Supervisor (position title "Workers' Compensation Coordinator III") for the Department's Division of Workers' Compensation Informal Dispute Resolution Unit has been preparing transcripts in appeals of Workers' Compensation cases from District F of the Office of the Judge of Compensation Claims. The Acting Secretary is concerned that a possible conflict of interest might exist by virtue of the District IV Supervisor's responsibility to facilitate the resolution of disputes between injured workers and employers/insurance carriers through informal dispute resolution and her private employment as a transcriber.

You advise that the basic function of the Informal Dispute Resolution Unit is to facilitate the earliest possible resolution of conflicts in workers' compensation cases. See Section 440.19(1)(h), Florida Statutes. The position description for the Workers' Compensation Coordinator III, which you attached to your letter of inquiry, indicates that among her duties are supervising a staff of Workers' Compensation Field Specialists, providing training, acting as liaison to the Administrative and Field Support Units (including the Compliance Unit, Medical Services Unit, Rehabilitation Unit, and Informal Dispute Resolution Unit) in order to "advocate, identify, justify, [and] coordinate administrative support and/or improvements needed to provide better operational support, i.e., supplies, equipment, [and] automation," and acting as liaison to other Divisions of the Department and other agencies. The District IV Supervisor also conducts periodic reviews and provides assistance in determinations made by subordinate specialists for completeness of investigation and for legal correctness of the decisions issued by her subordinates. She also acts as liaison with insurance carriers in critical cases, attends hearings, and provides testimony as required.

You advise that workers' compensation hearings conducted before a Judge of Compensation Claims ("JCC") usually are mechanically recorded. After the hearing and after the JCC enters a final order in the case, either party may appeal the decision by filing a Notice of Appeal. Pursuant to Section 440.29(2), Florida Statutes, and Fla.R.Work. Comp. P 4.180(h)(1), JCC's have the discretion to arrange for the preparation of the record on appeal, although, pursuant to Fla.R.Work. Comp. P. 4.180(h)(2), within 10 days of receiving notice of the JCC's selection of the transcriber or reporter, any party to the proceeding may file an objection to his selection. The JCC then is required to hold a hearing on the objection within five days of its filing. However, in most cases, the JCC forwards the hearing tapes to an individual who is informally designated to prepare the record. Typically, no formal written contract or other document evidencing the arrangements made by and between the JCC and the person designated to prepare the transcript is prepared.

Thereafter, the designated transcriber informs the JCC of the estimated cost of preparing the record and the JCC, pursuant to Fla.R.Work. Comp. P. 4.180(f)(1), sends a Notice of Estimated Costs of preparing the record to the appellant. You advise that the JCC in District F of the Office of Judge of Compensation Claims, for whom the District IV Supervisor prepares the transcripts of cases on appeal, requests that the District Supervisor prepare and send out the notices on his behalf. The District IV Supervisor receives no extra compensation for preparing the notices.

The appellant ordinarily submits a check to the JCC in the amount set forth in the notice to pay for the cost of preparing the transcript. You advise that none of the transcripts prepared by the District IV Supervisor are paid for out of State funds. In addition, the District IV Supervisor uses no State resources to prepare the transcripts and all record preparation is done outside of her regular working hours with the Informal Dispute Resolution Unit. Furthermore, in accordance with Department policy and CEO 84-12, the District IV Supervisor does not prepare the transcript in cases where the appellant has been adjudicated insolvent for purposes of paying the appellate filing fees and record costs. In such cases, fees and costs are paid out of the Workers' Compensation Administration Trust Fund on behalf of the injured worker.

Finally, you advise that the jurisdiction of the local offices of the Division of Informal Dispute Resolution have never been established formally. Usually, but not always, injured workers will work with the local Informal Dispute Resolution Unit nearest to his/her residence in an attempt to resolve disputes with employers and/or insurance carriers. Thus, although the District IV Supervisor is physically assigned to the Orlando office, which is located in District H of the Office of Judge of Compensation Claims, occasionally cases on appeal have arisen involving workers residing in District H, but which have been litigated before the JCC in District F.

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.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes.]

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. [Section 112.313(6), Florida Statutes.]

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(9), 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.]

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.]

In CEO 84-12, we found that a secretary to a Deputy Commissioner of workers' compensation (now "JCC") generally was not prohibited from acting in a private capacity to prepare records on appeal in workers' compensation cases. We found that she was not using her official position or any property or resources within her trust to secure a special privilege or benefit, in violation of Section 112.313(6), Florida Statutes, as it was the Deputy Commissioner who designated who was to prepare the record, and as the secretary did the work on her personal time without using Department equipment or supplies. We also found that because the Deputy Commissioner designated the preparer of the record, the secretary could not be considered to have used confidential information for her personal gain or benefit, in violation of Section 112.313(8), Florida Statutes. As with the transcripts prepared by the District IV Supervisor, we found in CEO 84-12 that because the secretary's services were compensated by the appellant, a private party, her outside employment did not constitute acting in a private capacity to sell services to her agency, which would violate Section 112.313(3), Florida Statutes. We did find, however, that a violation of Section 112.313(3) would exist if the secretary were to be compensated by the Department or out of any trust fund that it administers. Finally, we found that because the invoice submitted by the secretary was in an amount less than $500, even if a conflict of interest existed under Sections 112.313(3) and 112.313(7)(a), as long as the amount of remuneration from her agency did not exceed $500.00 in any calendar year, she could do business with her agency as provided in Section 112.313(12)(f), Florida Statutes.

Because the invoice that brought this matter to your attention was approximately $4000 and because you have advised that the District IV Supervisor does not prepare transcripts in cases on appeal where the appellant has been adjudicated indigent, the District IV Supervisor is neither paid by the Department nor out of any trust funds administered by the Department. Therefore, the Section 112.313(12)(f), Florida Statutes, exemption is not applicable. The question that remains, however, is whether by virtue of her position a conflict of interest exists for the District IV Supervisor under Section 112.313(7)(a), Florida Statutes. We found that it did not with respect to the Deputy Commissioner's secretary in CEO 84-12.

The first part of Section 112.313(7)(a), Florida Statutes, prohibits the District IV Supervisor from holding an employment or contractual relationship with the appellant if the appellant were doing business with or regulated by her agency. The term "agency" is defined at Section 112.312(2), Florida Statutes, to mean

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.

We previously have opined that by this definition the Legislature intended to define a state employee's agency as the lowest departmental unit within which his influence might reasonably be considered to extend. See CEO 91-56, CEO 92-11 and CEO 92-17. As the District IV Supervisor is employed within the Informal Dispute Resolution Unit (formerly called Bureau) within the Department's Division of Workers' Compensation, we find that the Informal Dispute Resolution Unit is her "agency" for purposes of the Code of Ethics.

You also advise that pursuant to Chapter 440, Florida Statutes, all employers and all workers' compensation insurance carriers are regulated in some manner by a unit within the Division of Workers' Compensation. For example, employers must secure workers' compensation coverage for their employees. See Section 440.10, Florida Statutes. The Compliance Unit within the Division has the authority to impose penalties against employers that do not secure the required coverage. See Section 440.43, Florida Statutes. Similarly, employers and carriers must submit forms, reports, and notices, in a timely manner, as required by Section 440.185, Florida Statutes, or face penalties imposed by either the Compliance Unit or the Self‑Insurance Unit. The Monitoring and Audit Unit as well as the Rehab and Medical Services Unit likewise have regulatory responsibilities.

In cases where the District IV Supervisor prepares the transcript, the appellant is either the injured worker, the employer, or the insurance carrier. However, you advise that the Informal Dispute resolution Unit has no regulatory responsibility over either the injured worker, the employer, or the carrier. Thus, as none of the potential appellants are either doing business with or regulated by the Informal Dispute Resolution Unit, the District IV Supervisor's agency, the first part of Section 112.313(7)(a) is not applicable.

The second part of this section prohibits the District IV Supervisor from holding an employment or contractual relationship which would create a continuing or frequently recurring conflict between her private interests and the performance of her public duties or that would impede the full and faithful discharge of those duties. For purposes of the Code of Ethics, a "conflict of interest" is defined at Section 112.313(8), Florida Statutes, to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." We find that a conflict of interest could exist were the District IV Supervisor to prepare the transcript in a case over which either she or one of the subordinates she supervises were responsible for attempting to resolve the case on appeal prior to hearing through informal dispute resolution.

Because you advise that such cases arise only occasionally, we do not find that a frequently recurring conflict exists or an impediment to her duty would be created by her continuing to prepare transcripts of cases on appeal from District F, as long as she continues to avoid preparing transcripts in cases for indigent appellants or in cases over which either she or one of her subordinates had some responsibility through the Informal Dispute Resolution Unit. Should the District IV Supervisor's responsibilities increasingly cross the district lines of the Office of the Judge of Compensation Claims, we suggest that you seek another opinion.

Accordingly, under the circumstances presented, we find that no prohibited conflict of interest would be created were the District IV Supervisor, on her own time and using her own resources, to continue to prepare the transcripts of cases on appeal from District F of the Office of Judge of Compensation Claims, as long as neither she nor any of the subordinates she supervises had any responsibility for attempting to resolve the case through informal dispute resolution and as long as remuneration for her work does not come from the Department or any trust fund administered by the Department.