CEO 94-23 -- June 2, 1994

CONFLICT OF INTEREST

COUNTY COMMISSIONER CONTRACTING WITH PRIVATE HOSPITAL

TO OBTAIN FUNDING FOR HOSPITAL PROGRAMS

To: Mr. Ray Sansom, Chairman, Okaloosa County Board of County Commissioners (Crestview)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a county commissioner to contract with a private psychiatric hospital to assist it in obtaining funding for its juvenile delinquency and prevention programs. The hospital is not regulated by the county and receives no funding from the county. Although the county commissioner anticipates funding from the local school district, the school district is a separate and distinct unit of government from that of the county commission. Additionally, there is no indication that the commissioner's services on behalf of the hospital would conflict with his public duties as a county commissioner. The commissioner is admonished to not use his position as a county commissioner for private benefit in contracting with the hospital, which could violate Section 112.313(6), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created were you, a county commissioner, to contract with a private psychiatric hospital to assist it in obtaining funding for its juvenile delinquency and prevention programs?

Your question is answered in the negative under the circumstances presented.

We are advised by your letter of inquiry and through correspondence exchanged with our staff that you are a member of the Okaloosa County Board of County Commissioners and are interested in contracting with a private psychiatric hospital located in the County to assist it in expanding its juvenile delinquency and prevention programs in the juvenile justice area. More specifically, it is anticipated that you will assist the hospital in obtaining federal, state, and local assistance through grants, aid, and other potential sources. You question whether your proposed work for the hospital would violate the Code of Ethics for Public Officers and Employees.

The applicable statutory provision, Section 112.313(7)(a), Florida Statutes, provides:

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.

The first part of Section 112.313(7)(a) prohibits a public officer from having an employment or contractual relationship with a business entity which is either doing business with, or regulated by, his agency. Although you have suggested that the hospital may seek funding from the School Board, your "agency" for purposes of the Code of Ethics is the Board of County Commissioners, not the School Board. There is no indication that the County regulates the hospital and you have represented that the hospital receives no funding from the County. Therefore, the hospital is not "doing business" with the County and is not subject to its regulation and, as long as the hospital does not obtain funding from the County, the first part of Section 112.313(7)(a) would be inapplicable.

The second part of Section 112.313(7)(a) prohibits you from having a contractual relationship which creates a continuing or frequently recurring conflict between your private interests in working on behalf of the hospital and the performance of your public duties as a County Commissioner. You also are prohibited from having a contractual relationship which impedes the full and faithful discharge of your public duties. Our review of the information you provided reveals no circumstances suggesting that your part-time work on behalf of the hospital would create a situation which "tempts dishonor" or impermissibly coincides with your duties on behalf of the County. You have asked that we address the fact that you receive compensation from the County for serving as a County Commissioner and whether, because you are compensated by the County, any outside employment would impede the full and faithful discharge of your public duties. It is our understanding that county commissioners are expected to faithfully perform the duties of their office and, but for the limitations contained in Chapter 112, Part III, Florida Statutes, we are aware of no legal restriction on their right to hold outside employment. Accordingly, we do not view your proposed outside employment, in and of itself, as an impediment to the full and faithful discharge of your duties as a County Commissioner.

Although your proposed work evidently will include appearances before other units of government, including those at the local level (excepting the County) and State and Federal agencies, we would admonish you to carefully tailor your presentations to ensure that there is no suggestion that you are using the office of County Commissioner to benefit you in your private endeavor. Use of your office for private gain could violate Section 112.313(6), Florida Statutes, which prohibits public officials from corrupt misuse of position.

Accordingly, we find that no prohibited conflict of interest would be created were you to contract with a private psychiatric hospital to assist it in obtaining grants and other assistance in order to develop programs for juvenile delinquency and prevention, under the circumstances presented.