CEO 94-24 -- June 2, 1994

CONFLICT OF INTEREST

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

EMPLOYEE SEEKING TO WORK FOR PRIVATE LAW FIRMS

IN CIVIL/DIVORCE MATTERS

To: Sandra Edwards, Child Protective Investigations Supervisor, District 8, Department of Health and Rehabilitative Services (Bradenton)

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a child protective investigations supervisor with the Department of Health and Rehabilitative Services to contract with private attorneys to prepare home studies for their clients involved in civil/divorce proceedings. Because of the supervisor's access to confidential department information, such private employment would present a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of her public duties, as well as potentially lead to a violation of Section 112.313(8), Florida Statutes. CEO's 89-43, 89-2, and 87-68 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, a child protective investigations supervisor with the Department of Health and Rehabilitative Services, District 8, to contract with private attorneys to provide home studies in civil/divorce cases?

Your question is answered in the affirmative, under the circumstances presented.

Through correspondence exchanged with our staff, we are advised that you are employed by the Department of Health and Rehabilitative Services in its District 8 office as a Child Protective Investigations Supervisor. You advise that you have been approached by several private attorneys who are interested in contracting with you to prepare home studies in civil/divorce proceedings. You relate that you have a background in resource development in which you have produced extensive home studies, and your experience in this area was acquired prior to your relocation to Florida.

If you are permitted to contract with private attorneys to perform these home studies, you acknowledge that you would not attempt to prepare studies for the attorneys' clients who are themselves clients of or receiving services from the Department, as you recognize that such a relationship could create a conflict of interest. To determine whether the families are in any way affiliated with the Department, you propose to perform, or have performed by a designee, a computer search of the Department's records. Thus, you question whether your proposed outside employment would create a conflict of interest prohibited by the Code of Ethics for Public Officers and Employees.

The applicable statutes, Sections 112.313(7)(a) and 112.313(8), Florida Statutes, provide as follows:

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 (1993).]

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 (1993).]

The first of these provisions, Section 112.313(7)(a), Florida Statutes, has essentially two provisions. The first part prohibits a public employee from having an employment or contractual relationship with a business entity which is doing business with or regulated by your agency. The second part prohibits a public employee from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between her private interests and the performance of her public duties, or which impedes the full and faithful discharge of her public duties. Section 112.313(8) prohibits a public employee from using or disclosing information which is not generally available to the public and which was gained through her public position for either her personal gain or benefit of for the personal gain or benefit of another person or business entity.

Your "agency" for purposes of the Code of Ethics is District 8. Thus, the first part of Section 112.313(7)(a) appears to be inapplicable to you and your proposed outside employment because the private attorneys you would work for would not be doing business with District 8 and are not subject to its regulation. Our attention then focuses upon the second part of Section 112.313(7)(a) and upon Section 112.313(8).

In CEO 87-68 we advised an intake counselor in the Department's District 5 CYF program that his private counseling activities would not create a conflict of interest under the second part of Section 112.313(7)(a) as long as his work was done during his off-duty hours, his services were not provided to individuals eligible for Department services, and he did not accept referrals from other Department employees. However, we do not believe that the rationale of CEO 87-68 is applicable to your proposed situation. More analogous is the rationale contained in several opinions involving law enforcement personnel. In CEO 89-43, we opined that a deputy sheriff could not be employed as a private investigator without violating the second clause of Section 112.313(7)(a). It was our view then that the deputy's access to confidential information, as well as other factors, created a continuing or frequently recurring conflict between his public duties and his private interests and would impede him in the full and faithful discharge of his public duties. There, we also recognized the potential which existed for the deputy to violate Section 112.313(8).

Even more compelling is CEO 89-2, in which we opined that a city police officer would have a conflict of interest under the second part of Section 112.313(7)(a) were he to provide accident reconstruction and consulting services to private attorneys and insurance companies. There, we acknowledged that the police officer's private clientele may be providing legal services to clients in which confidential information accessible by the police officer could be of considerable interest. We also noted

that the possibility that a police officer's access to confidential information in his department or through contacts with other law enforcement agencies could be used to the benefit of a private client gives the appearance of impropriety and the appearance that the police officer has an advantage over his private competitors by virtue of his public position.

In your public position, you evidently have access to two computer databases which contain information concerning allegations of child abuse and neglect, both present and past. Although you indicate that you could not perform and/or release records checks for the private attorneys who contract with you or for their clients, it is our view that this very sensitive information and your access to it would be of potentially great value to the attorneys and their clients in the frequently acrimonious and cutthroat realm of divorce and child custody proceedings. By this observation we do not mean to impugn you or your aspiration to avoid succumbing to the temptation of using public resources for private benefit. Instead, our concern focuses on the objective standard enunciated by the appellate court in Zerwick v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982), that Section 112.313(7)(a)

establishes an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'

Because we view your access to confidential information stored in your agency's computer databases as being potentially incompatible with your work for private attorneys representing clients in divorce and custody proceedings, we conclude that Section 112.313(7)(a) would be violated by your proposed employment.

Accordingly, under the circumstances presented, we find that a prohibited conflict of interest would exist were you, a child protective investigations supervisor, to perform home studies for private attorneys representing clients in civil/divorce proceedings.