CEO 98-16 -- October 22, 1998
CONFLICT OF INTEREST
VOLUNTEER COUNTY FIREFIGHTERS EMPLOYED BY
PRIVATE COMPANY CONTRACTING WITH COUNTY TO PROVIDE
AMBULANCE, EMERGENCY MEDICAL, AND FIRE AND
RESCUE DISPATCHING SERVICES
To: Name Withheld At Person's Request (Tavares)
SUMMARY:
No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were County volunteer firefighters to be employed by a private company which has contracted with the County to provide ambulance, emergency medical, and fire and rescue dispatching services. The company is regulated by and doing business with the Board of County Commissioners and the County Manager, and not by the County Department of Fire and Emergency Services, which would be the Aagency of the volunteer firefighters. No continuing or frequently recurring conflict between the firefighters' private interests, as employees of the company, and their public duties, as volunteer firefighters, or impediments to the proper performance of their public duties exist, as the volunteer firefighters are not in positions to make referrals to the company or to obtain business for the company in their public capacities, and they have had no connection with the contract between the County and the company. In addition, as the company is the Asole source of supply of the services that it has contracted with the County to provide, Section 112.313(12)(e), Florida Statutes, would exempt possible conflicts if the appropriate disclosures were made.
QUESTION:
Would a prohibited conflict of interest be created were County volunteer firefighters to be employed by a private company which has contracted with the County to provide ambulance, emergency medical, and fire and rescue dispatching services?
Under the circumstances presented, your question is answered in the negative.
In your letter of inquiry, you advise that you are requesting this opinion on behalf of the Lake County Deputy County Manager, who is in doubt about the application of Section 112.313(7)(a), Florida Statutes, with respect to the employment of County volunteer firefighters by a private company which has a contract with the County to provide ambulance, emergency medical, and fire and rescue dispatching services.
According to the Board of County Commissioners' current contract with the company, the company's original response to a request for proposals was accepted by the County in 1985. At that time, the County and the company entered into a contract under which the company furnished ambulance services to two then existing hospital districts, communication services for emergency medical services, and dispatching services for participating fire departments in the unincorporated areas of the County. We are advised that the County negotiated a new contract with the company in 1995 under which, among other things, the company agreed to provide the following:
a. continuous response capability for all emergency and non-emergency ambulance service calls;[1]
b. the rendering by the company of patient care at the scene of an incident to which it responds and assumption by the company of medical control once it is on the scene, including determining the need for patient transport or for canceling an ambulance already summoned, and patient transport;
c. Aquick response first responder services to medical emergencies in those areas of the North Lake County Ambulance District where the average response time exceeds the contracted minimum by sixty seconds or more; and
d. operation of the County's communications system which dispatches fire calls received over a 9-1-1 emergency telephone system.
Although the contract also provides for administrative, medical, and fiscal monitoring of the contract by the County Manager or his or her designee, all medical protocols, management of personnel, and operations are at the sole and absolute discretion of the company, according to the contract. Finally, in addition to the County's payment of $500,000 per year during the term of the contract and $50,000 or 50%, whichever is greater, from the Emergency Medical Services County Grant provided for under Chapter 401, Florida Statutes, to be used for capital equipment upgrades, the contract authorizes the company to charge and collect reasonable fees for ambulance services in accordance with a schedule established by the company and attached to and incorporated into the contract.
You also advise that the Board of County Commissioners adopted a Volunteer Incentive Program for the Department of Fire and Emergency Services. Among the incentives provided by the County to the volunteer firefighters under the plan are the following:
a. Alarm Response Reimbursement -- Reimbursement paid to volunteer firefighters at the rate of $5.50 per alarm, reimbursement paid to volunteer station officers at the rate of $6.00 per alarm, and reimbursement paid to volunteer battalion chiefs at the rate of $6.50 per alarm.[2]
b. Officer Stipend -- In consideration for their performance of special duties related to their positions, volunteer lieutenants receive a $150 annual stipend, volunteer captains receive a $300 annual stipend, and volunteer battalion chiefs receive a $600 annual stipend.
c. Training Stipend -- Based on the total training hours attended on an annual basis, volunteers annually attending a minimum of 75 hours of Lake County Fire/Rescue related training receive $150. If they attend a minimum of 150 hours, they receive $300.
d. Educational Incentive -- Currently, the County provides Emergency Medical Technician certification free of charge, offers college tuition for fire/rescue related classes to volunteers who wish to participate, and sends volunteers free of charge to classes at Vo-Tech, as well as to the State Fire College and throughout the State.
Section 112.313(7)(a), Florida Statutes, to which you refer, provides as follows:
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 or she is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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 or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]
This provision prohibits public employees from having employment or contractual relationships with business entities which are regulated by or doing business with their agency. The second part of Section 112.313(7)(a) also prohibits them from having employment or contractual relationships that create continuing or frequently recurring conflicts between their private interests and their public duties or create impediments to the full and faithful discharge of their public duties.
Initially, we note that there are threshold issues concerning whether the County's volunteer firefighters are subject to Section 112.313(7)(a). First is the question of whether the volunteers are receiving compensation, so as to make them employees of the County. See CEO 89-56, CEO 89-41, CEO 92-55, and In re Cornelius Adema, William Hansen, Brian Juntikka, Complaint Nos. 80-42, 80-43, 80-44 (Consolidated), 3 FALR 2090-A (1981). Secondly, as you note, there is a question whether Section 125.9502(2), Florida Statutes, which provides that persons who are defined as volunteers for a County Aare not subject to any provisions of law relating to public employment, exempts the subject volunteer firefighters from the Code of Ethics for Public Officers and Employees. However, we need not and do not decide these issues because we conclude that, even if the County's volunteer firefighters are subject to the restrictions of Section 112.313(7), that provision does not prohibit them from employment with the company under the circumstances presented here.
In a number of opinions we have examined the "agency" of county employees in light of the definition of "agency" contained in Section 112.312(2), Florida Statutes. See CEO 95-27. Consistent with those opinions, we find that, if the firefighters are public employees, their agency is the Department of Fire and Emergency Services. See CEO 82-23 and CEO 93-31. Further, because the company with which the firefighters would be employed is not regulated by or doing business with the Department of Fire and Emergency Services, we are of the opinion that the first part of Section 112.313(7)(a) does not apply to prohibit the firefighters' employment with the company. We find that the company is doing business with the Board of County Commissioners, a separate agency from the County Department of Fire and Emergency Services. In addition, the contract contemplates that monitoring of the company's performance under the contract (regulation) is done by the County Manager or his or her designee, rather than by the Department of Fire and Emergency Services. Finally, although Article II, Section 11-19, of the Lake County Code, which pertains to Aemergency services, requires the company, both initially and upon renewal of the contract, to submit its application and fee for a ACertificate of Public Convenience and Necessity to the County Department of Fire and Emergency Services, which then is required to send notice of the filing to each municipality within the geographic area to be served by the company and to have the matter placed on a meeting agenda of the Board of County Commissioners for a hearing, we believe that these activities do not constitute regulation by the Department of Fire and Emergency Services.
With regard to the second part of Section 112.313(7)(a), we do not perceive any continuing or frequently recurring conflicts between the firefighters private interests as employees of the company and their public duties for the Department of Fire and Emergency Services, or impediments to the proper performance of their public duties. Therefore, we find that the second part of Section 112.313(7)(a) also does not apply to prohibit their employment.
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 Zerweck 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 [or employee'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 have found Section 112.313(7)(a) prohibits paramedics employed with governmental agencies from being employed by private ambulance companies doing business in the jurisdiction of their agencies, where the paramedics are in positions to make referrals to the ambulance company or to obtain business for their private employer by determining whether the services of that company are necessary in a particular situation. See CEO 92-9, CEO 86-34, and CEO 84-19. In other opinions, we noted that conflicts could exist where firefighters/EMTs were in positions that enable them to make referrals to their private employers, where the firefighters had monitoring or reporting responsibility regarding deviations in protocols utilized by their employers, and where the firefighters' duties also involved the provision of emergency medical services. See CEO 95-27.
Here, none of those scenarios exist. Therefore, we are of the opinion that because the firefighters would not be in positions to make referrals to the company or to obtain business for the company by determining whether the services of the company are necessary in particular situations, and because the firefighters had and have no connection with the contract between the County and the company, no continuing or frequently recurring conflict would exist between the firefighters' private interests as employees of the company and the performance of their public duties; nor would impediments to the full and faithful discharge of their public duties be created by their employment. See CEO 86-34, CEO 84-19, and CEO 81-76.
In CEO 92-55 we were concerned about possible conflicts resulting from off‑duty county firefighters frequently being subject to recall when major incidents arose or when there were staffing needs. There, we had been advised that off‑duty county firefighters who were called back to work by the county would be required to report to duty or face disciplinary action. We noted further that should county firefighters be on‑duty at their part‑time municipal positions, their recall could leave the municipality uncovered and thereby prevent the municipality from providing the firefighting services for which the County contracted. Here, on the other hand, the volunteer nature of the firefighters' relationship to the County distinguishes this situation from CEO 92-55.
In CEO 93-31, we expressed concern about a county battalion chief's public responsibilities of scheduling and assigning personnel and managing the use of their leave in order to provide adequate coverage to the department and his responsibility to his private employer, a private ambulance service, to assure that adequate coverage by paramedics and EMTs was maintained. We also saw the potential that his supervisory, disciplinary, and investigatory responsibilities and his responsibilities to participate in the evaluation of employees might be influenced or compromised by his responsibilities to his private employer. Here, you have not provided any information that would indicate the possibility that the duties of any volunteer firefighter might be affected by his or her relationships with co-workers at the private employer.
Finally, Section 112.313(12), Florida Statutes, contains a number of exemptions to the prohibitions of Section 112.313(7)(a). One of those exemptions is Section 112.313(12)(e) which provides as follows:
EXEMPTION.-- . . . no person shall be held in violation of subsection (3) or subsection (7) if:
The business entity involved is the only source of supply within the political subdivision of the officer or
employee and there is full disclosure by the officer or employee of his interest in the business entity to the
governing body of the political subdivision prior to the purchase, rental, sale, leasing, or other business being transacted.
In CEO 79-25, we determined that this provision applied to a situation where a town mayor was a volunteer with a volunteer fire department contracting with the town to provide fire protection services. There, the town had no source of firefighting services other than the volunteer department. A similar determination was also made in CEO 86-29, where a city was prohibited by a referendum from contracting with any entity other than the subject volunteer fire department. There, we found that the volunteer department was the "sole source" of supply for firefighting services in the city and that the Section 112.313(12)(e) Asole source exemption applied.
Because you have advised that the company currently is the Asole source of supply@ for the services that it has contracted with the County to provide,[3] we are of the opinion that, as in CEO 79-25 and CEO 86-29, Section 112.313(12)(e) is applicable here as an exemption to the prohibitions of Section 112.313(7)(a). Consequently, as long as the firefighters complete Part B [Disclosure of Interest in Sole Source of supply] of Form 4A [Disclosure of Business Transaction, Relationship or Interest], we find that this exemption also applies to exempt any possible conflict that would be created by their employment with the company.
Accordingly, under the circumstances presented, we find that no violation of Section 112.313(7)(a), Florida Statutes, would be created where volunteer firefighters with the County are employed with the company which has contracted with the County to provide ambulance, emergency medical, and fire and rescue dispatching services.
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 22, 1998 and RENDERED this 27th day of
October, 1998.
__________________________
Charles A. Stampelos
Chairman
[1] According to the contract, this was to be accomplished by stationing seven (7) Advanced Life Support Ambulances at locations specified by the County, as the exclusive licensed Advanced Life Support-Basic Life Support provider.
[2] In order to be eligible for this reimbursement, the volunteer must attend a minimum of 65% of the training for HIS station within six months. However, volunteers are not paid to attend the training sessions, and only two volunteers are reimbursed for a medical call unless it is a cardiac call; then three volunteers may be reimbursed.
[3] You have advised that there are no other ambulance services operating in and/or licensed in Lake County, and the company is the only entity in the County that offers Advanced Life Support services and has the required Certificate of Public Convenience and Necessity required by the County.