CEO 95-35 -- December 1, 1995

CONFLICT OF INTEREST

HRS PUBLIC HEALTH PHYSICIST EMPLOYED AS

C.A.T. SCAN AND X-RAY TECHNOLOGIST

FOR COUNTY MEDICAL FACILITY

To: Paul Stickna, Public Health Physicist, HRS Office of Radiation Control (Miami)

SUMMARY:

A prohibited conflict of interest exists when a public health physicist employed by HRS' Office of Radiation Control is employed part-time by a medical facility regulated by his agency. The first part of Section 112.313(7)(a), Florida Statutes, prohibits the physicist from holding any employment with a business entity, such as a medical facility, which is subject to the regulation of his agency.

QUESTION:

Would a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, be created were you, a Public Health Physicist employed by HRS' Office of Radiation Control, to be employed part-time by a medical facility regulated by your agency?

Your question is answered in the affirmative.

Through a letter of inquiry from Ms. Cynthia Becker, Public Health Physicist Manager with the Department of Health and Rehabilitative Services' Office of Radiation Control, with which you are employed, we are advised that you have been employed as a public health physicist since January 1994. The Office of Radiation Control, we are advised, regulates the use of radiation within the State. However, we are advised that Broward and Polk Counties have contractual arrangements with your office to perform the regulatory duties within their counties. We also are advised that while licensing and enforcement activities remain the State's responsibility, these counties hire their own HRS staff to conduct inspections.

As a public health physicist, you have been responsible for inspecting x-ray facilities and radioactive material users, chiefly in Dade and Monroe Counties. You also are required to be available to respond to radiation incidents and participate in nuclear power plant exercises. On occasion, you have performed your inspection duties within Broward County at a medical facility which uses radioactive materials and x-rays and where you were employed on a part-time basis as a C.A.T. Scan and x-ray technologist. We are advised that your inspection duties occurred within Broward County, because several months after you became employed by HRS, you informed your supervisor that you no longer were participating in any outside employment activities. Thereafter, you were trained in radioactive material licensing at the Broward County hospital where you were employed part-time and assigned to perform federal compliance inspections at "F.D.A. sites" in Broward County.

Although you are no longer working on the federal compliance inspections project, you advise that a possibility still exists that you may be required to work in the Radiation Control Office in Broward County sometime in the future in order to help alleviate some of the back-up work load. You also advise that you are going to be put on the Emergency Radioactive Materials Response Call for the State, which may involve working in Broward County.

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.]

This provision prohibits you from having any employment or contractual relationship with a business entity which is doing business with or is subject to the regulation of your agency or which creates a continuing or frequently recurring conflict between your private interests and the performance of your public duties. For purposes of Section 112.313(7)(a), the phrase "conflict of interest" is defined in the Code of Ethics to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty of interest." Section 112.312(8), Florida Statutes.

As an employee of the Office of Radiation Control, your "agency" for purposes of this provision, we find, is HRS' Office of Radiation Control. In CEO 88-44 we found that a prohibited conflict of interest would be created were a public health physicist with HRS' Office of Radiation Control to be employed at a local hospital which, as a user of radioactive materials, was regulated by the employee's section of the Office of Radiation Control. Therefore, we also find that a prohibited conflict of interest would be created were you, who likewise are responsible for licensing and enforcement activities against medical users of radioactive materials, to be employed by the local hospital as a C.A.T. Scan and x-ray technologist. Moreover, we are of the opinion that your public responsibilities related to licensing and enforcement are not sufficiently divorced from your agency's regulatory activities that your outside employment with the hospital would not interfere with the full and faithful discharge of your public duties. See CEO 84-14.

Accordingly, we find that a prohibited conflict of interest was created by your working as a C.A.T. Scan and x-ray technologist for a medical facility which is regulated by your agency.

ORDERED by the State of Florida Commission on Ethics meeting in public session on November 30, 1995, and RENDERED this 1st day of December, 1995.

__________________________

William J. Rish

Chairman