CEO 90-68 -- October 19, 1990

CONFLICT OF INTEREST

COUNTY PUBLIC HEALTH UNIT MEDICAL DIRECTOR

SERVING ON BOARD OF DIRECTORS OF NONPROFIT CORPORATION

RECEIVING HRS FUNDING ADMINISTERED THROUGH UNIT

To: W. W. O'Connell, M.D., Medical Director, St. Johns County Public Health Unit (St. Augustine)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(3) or Section 112.313(7)(a), Florida Statutes, were the medical director of a county public health unit to serve on the board of directors of a nonprofit corporation receiving funding from the District office of the Department of Health and Rehabilitative Services in which the unit is located, although he would be prohibited from serving in that capacity were the corporation to contract with his public health unit. Section 112.313(3) would not be violated unless the corporation contracts with the health unit, as the medical director had no role in the decision to enter into the contract between the District and the corporation. Since the director receives no compensation for his service on the board of the private organization, he would have no employment or contractual relationship that could be prohibited by Section 112.313(7)(a).

QUESTION:

Would a prohibited conflict of interest be created were you, the Medical Director of a County Public Health Unit, to serve on the board of directors of a nonprofit corporation which receives funding from the Department of Health and Rehabilitative Services that is administered by the Health Unit?

Your question is answered in the negative, subject to the caveat noted below.

In your letter of inquiry, you advise that you are the Medical Director of the St. Johns County Public Health Unit, in which capacity you are an employee of the Department of Health and Rehabilitative Services. As Medical Director, you assist the Health Unit in its functions of promoting public health, controlling and eradicating preventable diseases, and providing primary health care. You oversee the Health Department and its programs and generally act as an administrator.

You wish to serve on the board of directors of a nonprofit corporation which will provide coordinated case management and services to persons affected by AIDS. This corporation serves as a clearing house to secure funds and provide services for AIDS victims. These services generally are not provided by State agencies. For example, services might include mental health therapy and drug rehabilitation. The organization plans to raise funds for these services by pursuing grants and donations from private organizations.

The Florida Legislature appropriated $150,000 to assist with the development of the AIDS network in Northeast Florida. The amount of $50,000 will be given to the District of the Department in which your Health Unit is located. The District will contract to provide these funds to the corporation and the money will be administered through the Health Unit.

In your capacity as Medical Director of the Health Unit, you are not involved with the decision involving distribution of the funds. Once decisions have been made at the District level on how the funds will be distributed, however, you are in charge of administering the funds through the Health Unit.

Section 112.313(7)(a), Florida Statutes, provides:

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.

As you have advised that you are not paid for your service on the board of the private corporation, we conclude that you would not have any employment or contractual relationship with the corporation which could violate this provision. See, for example, CEO 89-9.

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.

The first part of this Section prohibits you from acting in an official capacity as a purchasing agent to purchase services from the nonprofit corporation which you serve as a director. The term "purchasing agent" is defined in Section 112.312(16), Florida Statutes, to mean

a public officer or employee having the authority to commit the expenditure of public funds through a contract for, or the purchase of, any goods, services, or interest in real property for an agency, as opposed to the authority to request or requisition a contract or purchase by another person.

Since you state that you have no authority to purchase services from the organization and that purchasing decisions are made at the District level where you have no input or control, we are of the opinion that you would not be acting as a purchasing agent under the circumstances presented.

The second part of Section 112.313(3) prohibits you from acting in a private capacity to sell services to your agency. In CEO 88-50, we determined that the "agency" of an employee of a county public health unit was the unit; in several opinions beginning with CEO 76-12 we have concluded that being a director of a corporation selling to an agency constitutes "acting in a private capacity" to sell to the agency. Therefore, you would be prohibited from serving as a director of the nonprofit corporation if the corporation is selling any services to the County Public Health Unit. At present, you indicate that the organization will be contracting only with the HRS District. As the contract will not be with the Public Health Unit, your "agency," we find that you would not be acting in a private capacity as a director of the nonprofit corporation to sell any services to your agency. However, your letter references the possibility that the corporation in the future may contract with a public health unit. If the corporation contracts with your Health Unit, it appears that Section 112.313(3) would prohibit you from serving as a director of the corporation.

Accordingly, under the circumstances described, we find that no prohibited conflict of interest would be created were you, the medical director for a local public health unit, to sit on the board of the nonprofit corporation which receives funding administered through the health unit, although you would be prohibited from serving in that capacity were the corporation to contract with your public health unit.