CEO 87-20 -- April 23, 1987

CONFLICT OF INTEREST

D.H.R.S. EMPLOYEE OWNING GROUP HOME IN DISTRICT

To: (Name withheld at the persons request.)

SUMMARY:

A prohibited conflict of interest would be created were a Department of Health and Rehabilitative Services District Screening Coordinator responsible for caretaker background checks to lease property to an organization which would establish a group home. While applicants for the positions in the group home could be screened by a neighboring district, such an arrangement would impede the full and faithful discharge of the public employee's duties in violation of Section 112.313(7)(a), Florida Statutes. However, no prohibited conflict of interest would exist were the employee to own an adult congregate living facility as her public duties would be unrelated to any relationships between the facility and the Department. CEO's 78-50, 83-84 and 84-24 are referenced.

QUESTION 1:

Would a prohibited conflict of interest be created were you, a District Screening Coordinator for the Department of Health and Rehabilitative Services, to lease property to an organization for the establishment of a group home?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you are employed as a Human Services Program Coordinator for District 11, Department of Health and Rehabilitative Services. In that position, you serve as a District Screening Coordinator and are responsible for assuring appropriate and timely implementation of background investigations and fingerprinting of caretakers within Developmental Services, Children, Youth and Families, and Drug Abuse and Mental Health vendered programs. You serve as a focal point for all planning, procedures development, monitoring and analysis of information done within your district concerning these caretaker background checks.

You further advise that you own a large house on five acres of land in Miami. This property was recently granted a zoning variance which would permit a group home that would house a maximum of six children. You intend to rent this home to an interested party or organization for the establishment of a group home. You would have no interest in the functioning or management of the home, and your sole interest and role would be that of a landlord.

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 (1985).]

The term "agency" is defined in Section 112.312(2), Florida Statutes as

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 advisory opinions, we have determined the "agency" of a D.H.R.S. employee by analogy to the department-division-bureau model specified in this definition. In CEO 78-50, we found that a district of the Department is the equivalent of a division within other State agencies. Since your "agency" for purposes of the Code of Ethics is District 11 of D.H.R.S., Section 112.313(7)(a), Florida Statutes, would prohibit you from having a contractual relationship with a business entity which is doing business with, or is subject to the regulation of that District.

In a telephone conversation with our staff, you advised that the group home would be licensed through the District's Children, Youth and Families' Licensing Unit, and that the possibility exists that the organization operating the home would be a D.H.R.S. vendor. Therefore, it is clear that the organization would be regulated by and/or doing business with your agency. Nevertheless, we are of the opinion that your position at the District is sufficiently removed from any regulatory or contractual activities pertaining to group home facilities that you thereby would not be placed in a conflict of interest situation.

However, Section 112.313(7)(a), Florida Statutes, also prohibits you from having any contractual relationship which presents a continuing or frequently recurring conflict of interest or which would impede the full and faithful discharge of your public duties. You advise that applicants for employment in this group home would be required to undergo the screening which you coordinate and which is required by Chapter 85-54, Laws of Florida. For purposes of the Code of Ethics, the term "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." In our view, regard for your interests as a landlord of the group home would tend to lead to disregard of your duties regarding the screening of all applicants for employment at the home. You state that, if necessary, such applicants could receive this screening from a neighboring district as a courtesy. However, it is our opinion that by displacing your responsibilities toward the screenings your relationship to the group home would impede the full and faithful discharge of your public duties.

Accordingly, we find that a prohibited conflict of interest would exist were you, a District Screening Coordinator for particular caretaker background checks, to lease property to an organization which would establish a group home.

QUESTION 2:

Would a prohibited conflict of interest be created were you to own an adult congregate living facility?

This question is answered in the negative.

In your letter of inquiry you advise that another possible use for your property would be as an adult congregate living facility (ACLF). The Department is authorized to license and regulate ACLF's under Part II of Chapter 400, Florida Statutes. In the case of your facility, District 11 is responsible for the licensure and regulation of these facilities.

We previously have advised that ownership of a business entity constitutes employment or a contractual relationship with that entity. See CEO 83-84. While Section 112.313(7)(a), Florida Statutes, prevents you from having any employment or contractual relationship with a business entity which is subject to the regulation of or doing business with your agency, the following provision requires that the Code of Ethics not be interpreted to preclude private pursuits which do not interfere with the full and faithful discharge of a public employee's duties:

Construction. -- 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. [Section 112.316, Florida Statutes (1985).]

In previous advisory opinions, we have found that D.H.R.S. employees whose public responsibilities were unrelated to their private pursuits could retain their outside employment without violating the Code of Ethics for Public Officers and Employees. See CEO 84-24. Here, we note that in your position as District Screening Coordinator for Chapter 85-54 screenings, you play no role in the regulation, inspection, or funding of ACLF's. Nor would you be in a position to make or influence any referrals to such a facility. Finally, you advised that ACLF's are not subject to the Chapter 85-54 screenings which you oversee.

Accordingly, we find that no prohibited conflict of interest would be created were you to own and operate an ACLF while serving as a D.H.R.S. District Screening Coordinator for Chapter 85-54 caretaker background checks.