CEO 93-31 -- October 14, 1993

CONFLICT OF INTEREST

COUNTY DEPARTMENT OF PUBLIC SAFETY BATTALION CHIEF

EMPLOYED BY PRIVATE AMBULANCE SERVICE EMPLOYING

PARAMEDICS AND EMTS SUPERVISED BY HIM IN BOTH

HIS PUBLIC AND PRIVATE CAPACITIES

To: Pete F. Cummings, Battalion Chief, Clay County Public Safety Department (Middleburg)

SUMMARY:

A prohibited conflict of interest would exist were a battalion chief and emergency operations shift commander to be employed part-time as the chief of operations of a private ambulance company which also employs some of the same paramedics and EMTs whom he supervises as part of his public duties.

Because the responsibilities of the fire rescue division, the "agency" of the battalion chief, include investigation of applications for and renewals of certificates of public convenience and necessity and complaints against ambulance services companies, a prohibited conflict of interest exists in violation of Section 112.313(7)(a), Florida Statutes. The battalion chief is employed by a business entity which is regulated by his agency.

No continuing or frequently recurring conflict or impediment to the full and faithful discharge of the battalion chief's public duties is created merely because the battalion chief is employed by an ambulance services company which is placed on the county's "mutual aid" rotation list for provision of ambulance services when no county unit is available to transport patients because neither the battalion chief nor any of the employees whom he supervises are in positions to direct business to their private employer. The exemption at Section 112.313(12)(a), Florida Statutes, for business transacted under a rotation system also would apply to vitiate any possible violation of Section 112.313(7)(a) that might have arisen as a result of referral of business to the company.

However, a continuing and frequently recurring conflict between the battalion chief's private interests and the performance of his public duties or an impediment to the full and faithful discharge of his public duties exists by virtue of his public duties vis-a-vis the public employees whom he supervises, manages, schedules, evaluates, etc., and his responsibilities to his private employer to assure that adequate paramedic or EMT coverage is maintained, as well as because of his supervisory and managerial responsibilities with respect to investigations of applications for certificates of his private employer and his private employer's competitors and any complaints that may have been filed against them.

QUESTION:

Does a prohibited conflict of interest exist where you, a Battalion Chief and Emergency Operations Shift Commander for a County Department of Public Safety, are employed part-time as Chief of Operations for a private ambulance service which also employs some of the same paramedics and EMTs whom you supervise as Battalion Chief?

Your question is answered in the affirmative.

Through your letter of inquiry, response to written questions from our staff, and our staff's conversation with Public Safety Department staff, we are advised that you are a Battalion Chief and Emergency Operations Shift Commander for the Clay County Public Safety Department. In that position you supervise a shift of 22 employees in the Department's Fire Rescue Division and are responsible for ensuring that the Department's policies and procedures are followed. Your job description, which you enclosed with your letter, indicates that you have the authority to direct and coordinate resources of the Division and, in some cases, the County and other agencies to mitigate life and property threatening emergencies. As a shift manager, you are responsible for coordinating and managing the activities of personnel within the assigned shift in all types of emergency and non-emergency activities within the Fire Rescue Division. You advise that you have the ability to assign employees on your shift to different stations as needed. You also have the ability to call employees who are off duty back to work in an overtime status. As a shift and Division manager, your duties include supervising, planning, and controlling the activities and assignments of the employees on a designated shift, scheduling and assigning personnel and managing the use of leave to provide adequate shift coverage, assisting in the administration of the collective bargaining agreement and serving as the first step of the grievance procedure with the ability to initially resolve grievances arising from the agreement, supervising and participating in the evaluation of employees, and conducting investigations into accidents, equipment losses, and disciplinary matters as appropriate.

We also are advised that the Public Safety Department consists of at least four divisions: Fire Rescue, Animal Control, Telecommunications, and Emergency Preparedness. Although the Director of the Department recommends to the County Commission whether an ambulance service should receive a Certificate of Public Convenience and Necessity from the County, Clay County Ordinance 93-10 provides for investigation of the relevant facts relating to the application for a certificate by the Fire Rescue Division. Because a Certificate granted to an ambulance service company is good for only two years, a company may have to undergo investigation by the Fire Rescue Division every two years. Ordinance 93-10 also provides for investigation by the Fire Rescue Division of complaints against an ambulance service company that have been filed with the County.

You also advise that you also are employed on a part-time basis by a privately owned company located in Jacksonville. You advise that the company provides ambulance services in Jacksonville and to several counties surrounding Duval County, including Clay County. As with all ambulance companies having bases of operations in Clay County and which operate in the County, this company has been issued a certificate of public convenience and necessity by the County Commission. You advise that in Jacksonville, the company participates in the City's rescue referral program through which a Duval County rescue crew can call a zone provider (private ambulance) to handle non-emergency transportation of a patient. In contrast is Clay County, where rescue crews transport all patients when called upon to do so. However, the company that you work for does provide "mutual aid" when requested by Clay County when all of its units are committed to emergencies and another situation arises which requires ambulance services. You advise that as shift supervisor you have the ability to ask for a private ambulance for mutual aid; however, your request is made to the County Communications Center, which maintains a rotation log and calls the private ambulance company next in line for a mutual aid call. You advise that the mutual aid information is logged in by the dispatcher and that the entire procedure is overseen by a Communications Supervisor. You advise that mutual aid is called approximately about once or twice a month. However, there is no regular basis by which the frequency of calls can be estimated. For example, the Department may operate for a full month without having to seek mutual aid services; then they may be needed twice in one hour on a busy shift.

You advise that with the private ambulance services company you are responsible for scheduling and supervising employees, maintaining the fleet, and other duties as assigned by the owner. You advise that because several Clay County employees also work part-time as paramedics and EMTs with the company, you supervise them both in Clay County and with the company. Therefore, you are concerned about whether a conflict of interest exists under these circumstances.

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 a public employee from having or holding any employment or contractual relationship with a business entity or agency which is doing business with or is regulated by the employee's public agency. It also prohibits a public employee from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which impedes the full and faithful discharge of his public duties.

For purposes of Section 112.313(7)(a), "agency" is defined in Section 112.312(2), Florida Statutes, as follows:

'Agency' means any state, regional, county, local or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.

In previous opinions, we have expressed the view that the legislative intent was to define an employee's "agency," for purposes of the Code of Ethics, as the lowest departmental unit within which his influence might reasonably be considered to extend. See CEO 77-83, CEO 82-75, and CEO 83-61. Therefore, we find that because you are a Battalion Chief assigned to the Fire Rescue Division on the Department of Public Safety, your "agency" is the Fire Rescue Division.

In view of the Fire Rescue Division's responsibilities with respect to the ambulance services companies' initial applications for Certificates, applications for renewal of Certificates, and complaints, we also find that you have a contractual or employment relationship with a business entity which is subject to the regulation of your agency which is prohibited by Section 112.313(7)(a), Florida Statutes.

The other question remaining for our determination is whether your part-time employment with the company presents a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of your public duties. We are of the opinion that this provision also would be violated by your working part-time as Chief of Operations for the ambulance services company.

For purposes of the Code of Ethics, a "conflict of interest" is defined to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." Section 112.312(8), Florida Statutes. Based upon this definition, the court, in Zerwick v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982), held 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.'" We noted in CEO 91-34 that our concern, therefore, is whether the interests of a public officer's or employee's private employer and the nature of his private responsibilities could coincide with his public duties to "tempt dishonor," rather than with whether an officer or employee, through self-imposed limitations, could avoid succumbing to the temptation of using public resources for private benefit and thereby disregarding his public duties and the public interest. Similarly, in CEO 81-76, we found:

Neither Section 112.313(7)(a) nor [Section 112.312(8)] contains any language which requires proof that a public officer or employee has failed to perform his responsibilities, has not acted impartially, or otherwise has acted corruptly. The statute is entirely preventive in nature and is intended to maintain the respect and confidence of the people in their government by preventing certain situations in which private economic considerations may override the faithful discharge of public responsibilities. Thus, the statute is directed at potential conflicts of interest and thus is more concerned with what might happen in a given situation than with what actually happens.

We have found in previous opinions that Section 112.313(7)(a), Florida Statutes, prohibits paramedics employed with governmental agencies from being employed by private ambulance companies doing business in the jurisdiction of their agencies, where the paramedics were in a position to make referrals to the private ambulance company or to obtain business for their private employer in determining whether the services of that company were necessary in a particular situation. See CEO 92-9, CEO 86-34, and CEO 84-19. Our concern has been that the decision made by a paramedic or an EMT of whether to allow the private ambulance company to transport a patient not be influenced by regard for the interests of the paramedic's or EMT's private employer.

Here, neither you nor any of the EMTs or paramedics you supervise both in your public position and privately for the company are in positions to make referrals to the private ambulance company. You have advised that transportation must be provided by the Fire Rescue Division unless none of the County's units are available. If no units are available, a request for "mutual aid" is made through the County's Communications Center, over which you do not exercise any authority. The Communications Center then will contact the next company on the rotation list. Therefore, inasmuch as neither you nor the employees you supervise are in positions to direct business to your private employer, we do not find that a conflict of interest in violation of Section 112.313(7)(a), Florida Statutes, exists by virtue of the provision of EMT and paramedic services by your employees alone. Even if there were a conflict, Section 112.313(12)(a), Florida Statutes, creates an exemption to the prohibition of Section 112.313(7) where:

Within a city or county the business is transacted under a rotation system whereby the business transactions are rotated among all qualified suppliers of the goods or services within the city or county.

Thus, assuming that the rotation system established by the County includes all qualified ambulance service providers in the County, this exemption would apply to vitiate any possible violation of Section 112.313(7)(a), Florida Statutes, that might have arisen as a result of referral of business to the company.

However, we are concerned with the possible conflict between your public responsibilities of scheduling and assigning personnel and managing the use of their leave in order to provide adequate coverage to the Department and your responsibility to your private employer to assure that adequate coverage by paramedics and EMTs is maintained. We are concerned that your supervisory, disciplinary, and investigatory responsibilities, as well as your responsibilities to participate in the evaluation of employees, may be influenced or compromised by your responsibilities to your private employer. Finally, we are concerned that your responsibilities to your private employer might overshadow your responsibilities as Division Manager to perform unbiased investigations of applications for renewal of your private employer's and its competitors' Certificates of Public Convenience and Necessity and any complaints that may have been filed against them. Therefore, we find that your employment as Chief of Operations for the private ambulance company creates a continuing or frequently recurring conflict between your private interests and the performance of your public duties or could impede the full and faithful discharge of your public duties.

In making these determinations we are not unmindful of Section 112.316, Florida Statutes, which provides:

It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency, or county, city or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county city, or other political subdivision of the state involved.

This provision mandates that the Code of Ethics not be construed to prohibit a public employee from engaging in private pursuits which do not interfere with the full and faithful discharge of his public duties. In CEO 92-9 and CEO 93-8, we noted that one of the fundamental purposes of Section 112.313(7)(a) is to prohibit those situations in which a public officer or employee awards public business to a business with which he is associated. Although you are not in a position to award public business to your private employer, through exercise of your public responsibilities towards the public employees whom you supervise in both your public and private employment, as well as to your private employer and its competitors, you are in a position to benefit your private employer.

We do not mean to imply by this opinion that you intentionally would misuse your public position or resources within your trust. However, as in our past opinions, we find that your employment as Chief of Operations with the private ambulance service could place you in a situation which "tempts dishonor," and such a situation is sufficient to create a prohibited conflict of interest within the intent of Section 112.313(7)(a), Florida Statutes.

Accordingly, we find that under the circumstances described, a prohibited conflict of interest would exist were you to be employed part-time as the Chief of Operations of a private ambulance company which also employs some of the same paramedics and EMTs you supervise as part of your public responsibilities as Battalion Chief.