CEO 88-10 -- February 4, 1988

CONFLICT OF INTEREST

DEPARTMENT OF CORRECTIONS PSYCHOLOGIST EMPLOYED BY

ORGANIZATION PROVIDING COUNSELING TO FORMER INMATES

To: Mr. C. P. Worthington, Superintendent, Sumter Correctional Institute (Bushnell)

SUMMARY:

No prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where a Department of Corrections psychologist is employed as a therapist by a private organization which provides counseling to individuals who are on probation or in pretrial intervention programs. The organization is not regulated by, or doing business with, the Department, and the employee is not in a position in her public employment to make referrals to her private employer. The employee is cautioned against using her official position to solicit business for her private employer. CEO's 86-43 and 82-41 are referenced.

QUESTION:

Does a prohibited conflict of interest exist where a Department of Corrections psychologist is employed as a therapist by a private organization which provides counseling to individuals who are on probation or in pretrial intervention programs?

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

In your letter of inquiry and in a telephone conversation with our staff you have advised that . . . . is employed as a psychologist at the Sumter Correctional Institute, Department of Corrections. Her responsibilities include inmate counseling, evaluation, and crisis intervention. She also is employed as a therapist by an organization which provides counseling to sex offenders who are on probation or in pretrial intervention programs. Here, her duties consist of conducting group therapy with another therapist and attending staff meetings several times a year. She is not involved with intake work and makes no decisions regarding which group a client will attend. All of her activities with this organization take place outside of the premises of the Sumter Correctional Institute during her off-duty hours. The organization is a private enterprise which receives no state funding and has never contracted with the State. The program has been approved by sentencing courts, and referrals are made to the program by Department parole and probation field staff.

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 (1987).]

The first part of this provision prohibits a public employee from having an employment or contractual relationship with a business entity which is regulated by or doing business with her agency. In this case, you have advised that the organization is neither doing business with, nor regulated by, the Department.

The second portion of this provision prohibits a public employee from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that will impede the full and faithful discharge of her public duties. In previous opinions interpreting this provision, we have advised that to the extent that such "private efforts would result in the successful resocialization of ex-offenders, insuring their continual rehabilitation," a private therapist would be "assisting the Department to fulfill its goals." See CEO's 86-43 and 82-41. We consequently have found a unity of interest rather than a conflict of interest by virtue of such efforts. You advised that because of the nature of the employee's public duties, she would not be in a position to make referrals to her private employer. Although she performs psychological evaluations which could be utilized in making a decision to place an individual on probation or in a pretrial intervention program, her evaluation would not serve to refer a person to a particular outside program. Therefore, we are of the opinion that her private employment would not create a conflict with her public employment under Section 112.313(7)(a).

Please be advised that the Code of Ethics also contains the following prohibition:

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 (1987).]

Any attempt by the employee to use her official position to solicit business for her private employer could constitute a violation of this provision.

Accordingly, under the circumstances presented we find that no prohibited conflict of interest exists where the subject psychologist for the Department of Corrections is employed by a private organization to provide counseling to individuals who are on probation or in pretrial intervention programs.