CEO 89-63 -- November 30, 1989

CONFLICT OF INTEREST

DEPARTMENT OF CORRECTIONS DIRECTOR OF MENTAL HEALTH SERVICES MONITORING CONTRACT WITH UNIVERSITY UNDER WHICH WIFE PROVIDES CONSULTING SERVICES

To: (Name withheld at the person's request.)

SUMMARY:

A prohibited conflict of interest would not necessarily be created were the Director of Mental Health Services for the Department of Corrections to monitor a contract with a University, under which his wife would provide consulting and training services and pursuant to which she would receive forty percent of her salary. Such a relationship, however, may give an appearance of impropriety and the appearance of a possible violation of Section 112.313(6) or 112.313(8), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created were you, the Director of Mental Health Services of the Department of Corrections, to monitor a contract for certain mental health services provided by an institute at the University of South Florida, where your wife would be responsible for training and consultation in regard to the services provided pursuant to the contract?

In your letter of inquiry you state that you are employed with the Florida Department of Corrections as the Director of Mental Health Services. You reviewed a treatment proposal drafted by the Florida Mental Health Institute within the University of South Florida which was submitted for consideration and implementation by the Department. Your wife, who is on the faculty of the University, was a principal contributor to the treatment proposal and would provide training and consultation if the project were implemented by the Department.

As you wished to address the treatment provided by the program as part of a system-wide mental health services plan, you contacted the Chair of the Department of Law and Mental Health of the Institute to discuss possible modifications in the proposal which would conform to the plan. The requested modifications were made to the proposal by the Chair after he had consulted with your wife. You then submitted the entire plan, which incorporated the proposal, to the Assistant Secretary for Health Services and to the Secretary of the Department. Both approved the plan.

This plan has not yet been implemented, but when it is, you will have the responsibility of monitoring implementation and making recommendations to the Assistant Secretary for Health Services for modification of the program--including whether to expand or curtail it on the basis of program evaluation data. You will not have managerial or other supervisory duties over your wife.

Your wife, who is tenured, is guaranteed a salary regardless of whether the contract is implemented. She will not receive job security should the proposal be funded and implemented, although the University plans to pay forty percent of her salary from the contract should it be awarded. She would not receive an increase in salary should the contract be accepted.

In regard to your question, Section 112.313(7)(a), Florida Statutes, states:

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.

Although this section prohibits certain contractual relationships, we do not believe that it was intended to be applied to a marital relationship. Rather, we believe that conflicts of interest resulting from family relationships were addressed by the Legislature in Section 112.3135, Florida Statutes, which states:

(2)(a) A public official may not appoint, employ, promote, or advance, or advocate for punishment, employment, promotion, or advancement, in or to a position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official. An individual may not be appointed, employed, promoted, or advanced in or to a position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual.

As you have not provided us with information to indicate that you would be in a position to hire or promote your wife in regard to the contract, and as you have indicated that her employment status will not be affected by the contract, we do not believe that this statutory section is applicable.

Section 112.313(3), Florida Statutes, provides:

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.

(d) Beginning public employment.

In addition, Section 112.3185(6), Florida Statutes, provides:

No agency employee acting in his official capacity shall directly or indirectly procure contractual services for his own agency from any business entity of which a relative, as defined in s. 116.111(1)(c) is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest.

Neither of these statutory prohibitions would appear to apply to the situation you describe, as it does not appear that your wife is an officer or director of the Institute at the University. Nor does it appear that the Institute at the University would constitute a "business entity" within the intent of these sections. See CEO 88-65.

However, we bring to your attention Section 112.313(6), Florida Statutes, which states:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall 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.

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(7), Florida Statutes.]

In order to violate this provision, your actions must be determined to be inconsistent with the proper performance of your public duties. Therefore, unless it can be shown that this contract is not in the best interests of the Department, that proper procedures were not followed in awarding the contract, that your wife's employer was given special consideration or other privileges not given to others seeking the contract, or that you acted in some other manner which could be viewed as inconsistent with the proper performance of your public duties, then it is not likely that this provision would apply.

If the contract is implemented and you use your position or resources within your trust to benefit your wife, however, your actions could be determined to be in violation of this provision. As the determination of whether a violation of Section 112.313(6) exists requires a determination of intent which cannot be made in an opinion, we are unable to address this issue more precisely here. We do feel compelled to bring to your attention, however, that although there is not necessarily a violation in the authority you possess to modify or curtail the contract, any action by you which could be viewed as beneficial to your wife might give rise to the appearance of a possible violation of this section, or of Section 112.313(8), Florida Statutes, which states:

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.

We therefore suggest that you remove yourself as much as possible from any decision regarding acceptance, modification, or rejection of the contract.

Your question is answered accordingly.