CEO 81-76 -- October 29, 1981

CONFLICT OF INTEREST

CAPTAIN WITH CITY RESCUE UNIT OWNING AMBULANCE SERVICE

To: Mr. Fred Elefant, Attorney, Jacksonville

SUMMARY:

Section 112.313(7), F. S., prohibits a public employee from having 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. This provision would be violated if a city employee acting as a rescue technician were to own and be an officer of a private ambulance service, as the employee would be in a position to refer patients to his ambulance service. This conflict of interest would not be obviated by rules specifically prohibiting such referrals.

QUESTION:

Would a prohibited conflict of interest be created were a captain employed by a city fire protection division as a member of a rescue unit to own and be an officer of a private ambulance service operating within the city?

Your question is answered in the affirmative.

In your letter of inquiry you advise that Mr. Herbert Sellers presently is employed as a Captain with the Fire Protection Division of the City of Jacksonville, which Division consists of a combat firefighter branch, a rescue branch, and a services branch. Until recently, you advise, Mr. Sellers was assigned to the rescue branch, in which capacity he served as half of a two-man team responding to and caring for the victims of sudden illness and accident. In that position, he dealt with trauma and advanced cardiac life support measures, and triaged patients in the pre-hospital setting. In addition, he was responsible for ordering and maintaining adequate levels of medical supplies, maintaining records, establishing work details, preparing work schedules and training schedules, and for similar matters.

Recently, Mr. Sellers was transferred from the rescue branch of the Fire Protection Division of the services branch, based upon a concern of the City that his remaining with the rescue unit would involve a conflict of interest with the operation of a private ambulance service recently organized by him. You advise that Mr. Sellers is the president and part-owner of this company, which transports patients who are sick or injured to nearby hospital facilities and which provides various medical services during transport. You advise that these services contrast with the services provided by the rescue branch of the Fire Protection Division, which generally transports only patients who require advanced life support systems, that is, patients who are seriously ill and whose condition is expected to deteriorate significantly within the next six hours. The rescue branch triages patients at the scene to determine their specific needs; if they are not involved with a life-threatening condition, rescue personnel will bandage, splint, stop bleeding, or provide other necessary medical services and then will have the patients arrange for their own transportation to the hospital. At the present time, you advise, rescue personnel furnish patients with cards which designate the available medical transportation services in the City. In addition, you write that rescue personnel are prohibited from referring individuals to a particular ambulance service or practicing physician.

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), F. S. (1979)].

This provision prohibits a public employee from having any contractual relationship or employment with a business entity which is doing business with his agency or which is subject to the regulation of his agency.

We find that the subject employee's "agency" is the Fire Protection Division of the City Public Safety Department. Section 112.313(2), F. S. However, under the circumstances you have described, it does not appear that the ambulance service could be considered to be doing business with the Fire Protection Division. Nor does it appear that the ambulance service is subject to the regulation of the Fire Protection Division. Pursuant to Part I, Chapter 414, of the City Code, ambulance services within the City are required to obtain a certificate issued by the City Council subject to suspension or termination by action of the City Director of Health, Welfare, and Bio-Environmental Services and by the Council. In addition, emergency and nonemergency medical transportation services are required to be licensed by the Florida Department of Health and Rehabilitative Services pursuant to Chapter 401, F. S. Therefore, it appears that the Fire Protection Division has no regulatory responsibilities over ambulance services within the City.

Section 112.313(7) also prohibits a public employee from having 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. We are of the opinion that the subject employee's employment and contractual relationship with his private ambulance service would present a continuing or frequently recurring conflict of interest and would impede the full and faithful discharge of his public duties as a rescue technician in the rescue branch of the Fire Protection Division.

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 or interest." Section 112.312(6), F. S. Neither Section 112.313(7)(a) nor this Section 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.

In our view, as an employee in the rescue branch, the subject employee would be in a position to make referrals to his private ambulance service on a frequently recurring basis. In addition, there would be the possibility that he could obtain additional business for his company during the course of his duties in determining whether a patient was an emergency case or a nonemergency case. We do not mean to imply that the subject employee necessarily would make such a determination in favor of a private ambulance company or that he had done so in the past, but rather that he would be in a position to do so while serving in the rescue branch and that regard for his private interests would lead to disregard of his public duties to determine honestly whether a particular patient required emergency transportation and to refuse to make referrals to a particular ambulance company. Under Section 112.313(7)(a), our concern is more with what might happen in a given situation than with what actually has happened. In this respect, we note that in South Trail Area Fire Control District v. Knecht, 400 So. 2d 46 (Fla. 2d D.C.A. 1981), the District Court of Appeal upheld the Fire Control District's termination of a paramedic who also was employed by a private ambulance service on the basis of a conflict of interest, apparently resulting from the paramedic's solicitation of business for the private company.

You have asked whether a requirement by the City that any rescue personnel working for a private ambulance service must refer potential private ambulance users to the competing ambulance service would obviate any potential self interest in the situation. We agree that such a requirement, if adhered to strictly, would eliminate the potential for abuse of one's position with the rescue branch. However, the requirement would not eliminate self interest from the situation; regard for private interest in the profitability of the private ambulance company would remain and still would tend to lead to disregard of public duties. Similarly, we note that the Legislature has prohibited expressly the corrupt use of public position by enacting Section 112.313(6), F. S., while also finding it necessary to prohibit certain employment and contractual relationships, whether or not actual misconduct has resulted from those economic relationships.

Accordingly, we find that a prohibited conflict of interest would be created were the subject employee to resume his position with the rescue branch of the City Fire Protection Division while owning and serving as an officer of a private ambulance service.