CEO 84-12 -- March 8, 1984

CONFLICT OF INTEREST

DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY EMPLOYEE PREPARING RECORD ON APPEAL FOR APPEAL BY DEPARTMENT'S SPECIAL DISABILITY TRUST FUND

To: Mr. Kenneth H. Hart, Jr., General Counsel, Department of Labor and Employment Security

SUMMARY:

No prohibited conflict of interest would be created were an employee of the Department of Labor and Employment Security, who serves as a secretary to a Deputy Commissioner, to be designated by the Deputy Commissioner to prepare in a private capacity the record on appeal in a workers' compensation case which is being appealed by the Department's Special Disability Trust Fund. Although Section 112.313(3), Florida Statutes, prohibits a state employee from acting in a private capacity to sell any services to his agency, Section 112.313(12)(f), Florida Statutes, as interpreted in CEO 77-182, CEO 81-73, and CEO 82-85, exempts sales in amounts not exceeding $500 within any calendar or fiscal year.

QUESTION:

Would a prohibited conflict of interest be created were an employee of the Department of Labor and Employment Security, who serves as a secretary to a Deputy Commissioner, to be designated by the Deputy Commissioner to prepare in a private capacity the record on appeal in a workers' compensation case which is being appealed by the Department's Special Disability Trust Fund?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry and subsequent correspondence, you advise that you serve as General Counsel to the Department of Labor and Employment Security and that Ms. Sandra R. Akins is employed by the Department as a secretary to a Deputy Commissioner of workers' compensation. You also advise that the Department allows its employees to prepare records and transcripts on appeal in workers' compensation cases. These records are prepared by the employees on their personal time away from the office, using their own equipment, supplies, and materials.

Recently, the Special Disability Trust Fund, which is administered by the Department, filed a notice of appeal from an adverse ruling by a workers' compensation Deputy Commissioner. The Trust Fund has been created by Section 440.49(2), Florida Statutes, to encourage the employment of the physically handicapped by protecting employers from excess liability for compensation and medical expenses when an injury to a handicapped worker merges with his pre-existing physical impairment to cause a greater disability than would have resulted otherwise, by reimbursing employers for workers' compensation benefits in these instances. After the Trust Fund noticed its appeal to the District Court of Appeal, the Deputy Commissioner requested the subject employee to prepare the record on appeal. Upon completion and filing of the record with the District Court, the employee submitted an invoice to your office as attorney for the Trust Fund.

The Deputy Commissioner who conducts a hearing is authorized by Rule 18(g), Workers' Compensation Rules of Procedure, to decide who will prepare the record if an appeal is taken. At the direction of the Chief Commissioner, Deputy Commissioners use mechanical devices to record all hearings. If a party brings a court reporter at the party's expense to a hearing, the general practice is to designate that reporter as the official reporter for that hearing, and to allow the reporter to prepare the record in the event of an appeal. If no court reporter was present, the Deputy Commissioner obtains a court reporter who was not present at the hearing or a skilled individual to prepare the record. After the record is prepared, the Deputy Commissioner certifies it, and transmits copies of the record to the parties and to the District Court.

Except in insolvency appeals, where the Workers' Compensation Administration Trust Fund advances the costs of appeal in behalf of an insolvent appellant, the Department permits qualified employees to prepare records on a volunteer basis as approved by the supervising Deputy Commissioner. The employee's services are paid for by the appealing party. Use of agency employees varies depending on their ability and willingness to do the work on personal time and the availability of non-agency employees capable of preparing such records. There are approximately thirty court reporters or non- agency employees who prepare these records on a regular recurring basis. Approximately four agency employees presently prepare these records on a regular, recurring basis, although others may do so on occasion. The maximum charge permitted for preparing a record is the same as that set in judicial cases by the chief judge in each judicial circuit.

We are of the opinion that the Code of Ethics for Public Officers and Employees does not prohibit the subject employee from acting in a private capacity to prepare records on appeal in workers' compensation cases, generally. The employee is not using her official position or any property or resources within her trust to secure a special privilege or benefit, in violation of Section 112.313(6), Florida Statutes, as it is the Deputy Commissioner who must designate who will prepare the record, and as the employee does this work on her personal time without using Department equipment or supplies. Similarly, as the Deputy Commissioner designates the preparer of the record, the employee cannot be considered to have used confidential information for her personal gain or benefit, in violation of Section 112.313(8), Florida Statutes. As the employee's services are compensated by the appellant, we do not believe that her outside employment constitutes acting in a private capacity to sell services to her agency, which would violate Section 112.313(3), Florida Statutes, or that her outside employment presents a conflict of interest under the prohibitions of Section 112.313(7)(a), Florida Statutes.

However, we believe a different situation is presented where the employee's services are to be compensated by the Department or by a trust fund administered by the Department. Section 112.313(3), Florida Statutes, prohibits a State employee from acting in a private capacity to sell any services to the employee's agency. Here you have indicated that her services will be paid for from the funds of your office and eventually from the Special Disability Trust Fund.

Nevertheless, we have advised that an employee may do business with his or her agency in an amount not exceeding five hundred dollars within any calendar or fiscal year. See Section 112.313(12)(f), Florida Statutes, as interpreted in CEO 77-182, CEO 81-73, and CEO 82-85. As the invoice submitted by the employee to your office for services in preparing the record on appeal is less than five hundred dollars, we find that this exemption applies here and therefore that the subject employee is not prohibited from receiving payment for the services she has rendered.

Accordingly, under the circumstances presented, we find that no prohibited conflict of interest was created where the subject employee was designated by the Deputy Commissioner to prepare the record on appeal for the Department's Special Disability Trust Fund.