CEO 84-23 -- April 26, 1984

CONFLICT OF INTEREST

D.H.R.S. EMPLOYEE ENGAGING IN BUSINESS OF PROVIDING RESPITE CAREGIVER SERVICES

TO: Ms. Judith M. Anderson, Human Services Counselor, District V, Department of Health and Rehabilitative Services

SUMMARY:

No prohibited conflict of interest would be created were a Human Services Counselor with the Aging and Adult Services Program of a D.H.R.S. District to engage in the business of providing respite caregiver services to relieve the primary caregivers of children, and elderly, and disabled adults, so long as those persons are not clients of the District's Aging and Adult Services Program. The business would not be licensed by D.H.R.S., and would not be doing business with the Department or competing with any Department-sponsored program. However, because of the employee's duties, a frequently recurring conflict of interest would exist if the employee's business were to provide services to clients of the District's Aging and Adult Services Program, in violation of Section 112.313(7)(a), Florida Statutes. No provision in the Code of Ethics would prohibit the employee from resigning to engage in such a business.

QUESTION 1:

Would a prohibited conflict of interest be created were you, a human services counselor with the Aging and Adult Services Program of a Department of Health and Rehabilitative Services District, to engage in the business of providing respite caregiver services for the primary caregivers of children, and elderly, and disabled adults?

This question is answered in the negative, subject to the restriction noted below.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that you are employed as a Human Services Counselor in the Aging and Adult Services Program of District V, Department of Health and Rehabilitative Services. In that position, you serve clients who are SSI recipients, income eligible individuals, and adults or elderly, infirm individuals who are in need of protective services without regard to income by virtue of being in danger of physical abuse or neglect or financial exploitation. You are responsible for evaluating the condition of your clients to determine whether they are in need of placement in a nursing home or an adult foster home, or whether they may remain at home with the assistance of various support services.

You also advised that you are considering starting a business to provide respite caregiver services to assist persons who are responsible for caring for children and elderly and disabled adults who cannot care for themselves. Your business would act like a broker, lining up qualified persons to fill in for these caregivers on a temporary basis. You anticipate contracting with each respite caregiver, who would be self-employed, and contracting with the existing caregiver, so that the existing caregiver would pay the respite caregiver and provide you with a percentage commission. Your commission would be based on a sliding fee scale, depending on the income of the household. Although your clients generally will be well beyond H.R.S. income eligibility limits, it may happen that the person responsible for caring for an H.R.S. client seeks interim caregiving services through your business. If this happens, you advise, you would provide your services free of charge, although the respite caregiver still would be paid.

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 (1983).]

You have advised that your business would not be licensed or regulated by D.H.R.S. In addition, you advised that the Department would not pay for your services, as the Department has no program which would do so. Therefore, our primary concern is whether your private employment would create a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of your public duties.

You have advised that your business would not compete with any Department-sponsored program, as the Department does not provide services of this nature. As to your business arranging caregiving services for individuals who are clients of the Department, we generally do not perceive a conflict of interest because your employment is specifically with the Aging and Adult Services Program. However, because your employment involves you directly with these clients, we perceive a frequently recurring conflict of interest, giving rise to the possible appearance of a misuse of public position to obtain clients, if you were to provide services for clients of the District's Aging and Adult Services Program, even if those services would be provided without a fee to you.

Accordingly, we find that no prohibited conflict of interest would be created were you to remain an employee of the Department while engaging in the business of providing respite caregiver services for persons other than clients of the District V Aging and Adult Services Program.

QUESTION 2:

Would a prohibited conflict of interest be created were you to leave your employment with the Department of Health and Rehabilitative Services and to engage in the business of providing respite caregiver services for the primary caregivers of children, and elderly, and disabled adults?

This question is answered in the negative.

With respect to former State employees, the Code of Ethics provides in Section 112.3185(3), (4), and (5), Florida Statutes:

No agency employee shall, after retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract in which the agency employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice or investigation while an officer or employee.

No agency employee shall, within 2 years of retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract for contractual services which was within the agency employee's responsibility while an employee.

The sum of money paid to a former agency employee during the first year after the cessation of his responsibilities, by the agency with whom he was employed, for contractual services provided to the agency by him, shall not exceed the annual salary received by him on the date of cessation of his responsibilities. The provisions of this subsection may be waived by the agency head for a particular contract if the agency head determines that such waiver will result in significant time or cost savings for the state.

As your business would not be contracting with the Department, we find that neither subsection (3) nor subsection (4), above, would apply. Similarly, we find subsection (5) to be inapplicable, as you would not be leaving your State employment and then contracting with the Department to provide contractual services.

Accordingly, we find that no prohibited conflict of interest would be created were you to resign your employment with the Department in order to engage in the business of providing respite caregiver services.