CEO 00-22 – November 21, 2000
A CASE MANAGEMENT GUIDE DEVELOPED FROM
CONFIDENTIAL CLIENT CASES
To: (Name withheld at person’s request.)
The Code of Ethics would not be violated were a Department of Children and Families employee to publish and receive an advance and/or royalties from a publisher for the publication of a "case management guide" which is based on the employee's years of experience as a State employee and information from confidential Department case files, where the identities of the Department’s clients remain confidential. There is no indication that the employee would be acting as a “purchasing agent” to purchase her manuscript for District V, and there is no indication that she would be acting in her private capacity to sell her manuscript to her agency. Furthermore, there is no indication that the employee would be employed by or would be contracting with a business entity doing business with or subject to the regulation of her agency, and her public duties appear to be limited to providing overall management and supervision of District V staff involved with the provision of casework services to elderly and disabled adults in need of placement services and in no way involve the writing or publication of, or the selection of, a “case management guide” for her staff, the District, or the Department.
In addition, no violation of Section 112.313(8), Florida Statutes, would be created by the employee's use of the information. Section 112.313(8), Florida Statutes, was not intended to be applied to situations where the use of information obtained as an outgrowth of an employee's public employment and which is not specifically made confidential or exempt from disclosure by the State Constitution or statute and is intended to be used for academic or professional development purposes. As the development of the employee's manuscript is not part of her official duties and would be written on her own time, she would not be taking unfair advantage of her position to benefit herself or others through the use of the information.
Would a prohibited conflict of interest be created were you, a Department of Children and Families employee, to publish and receive an advance and/or royalties from the publisher for the publication of a "case management guide" which is based on your years of experience as a State employee and information from confidential Department case files, where the identities of the Department’s clients remain confidential?
Under the circumstances presented, your question is answered in the negative.
From your initial letter of inquiry, your response to staff's request for additional information, and the copy of your written Career Service System Position Description, we are advised that you are employed as a Senior Human Services Counselor Supervisor with the Aging and Adult Services Section of District V of the Department of Children and Families ("DCF"). In that capacity, we are advised, you supervise a unit responsible for providing services both to clients living in assisted-living facilities and to disabled clients living in the community.
Your written position description indicates that you are responsible for providing overall management and supervision of the unit’s staff who are involved with the provision of casework services to elderly and disabled adults in need of placement services. Among your specific duties and responsibilities, as set forth in your written position description, are the following:
You advise further that you have written a "case management guide" which is based on your years of experience as a State employee. Your manuscript's case examples, you write, are drawn from your experiences. However, due to the statutory requirement that the clients’ identities remain confidential, all of the clients’ identities have been concealed either by your omitting their names or by your assigning fictitious names to the cases. In fact, you indicate that the case examples are all taken from service records that have been closed and warehoused for a number of years.
You also advise that the members of the targeted audience for your manuscript are human service professionals employed in both the public and private sectors, as well as students pursuing degrees in social work. You write that while you do not have a publisher at this time, you are concerned about whether a conflict of interest or other violation of the Code of Ethics for Public Officers and Employees would be created by your publishing your manuscript and/or your collecting an advance and/or royalties for the manuscript.
Relevant to your inquiry are the following provisions of the Code of Ethics:
DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer’s or employee’s spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer’s or employee’s 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 the officer’s or employee’s own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she 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.
(c) Appointment to public office.
(d) Beginning public employment.
[Section 112.313(3), Florida Statutes.]
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.]
DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his or her official position for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), Florida Statutes.]
Section 112.313(3) prohibits you from acting in an official capacity, as a purchasing agent, to purchase, rent, or lease any goods, realty, or services for your agency from a business entity of which you, or your spouse or child is an officer, partner, director, or proprietor or where you or your spouse or child have a direct or indirect ownership interest of more than 5% of the total assets or capital stock of the business entity. It also prohibits you from acting in a private capacity to sell goods or services to your own agency. The term “purchasing agent” is defined at Section 112.312(20), 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.
The term "agency" also is defined in the Code to mean
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. [Section 112.312(2), Florida Statutes.]
In previous opinions we have said that the Legislature intended to define a State employee's agency as the lowest departmental unit within which his or her influence might reasonably be considered to extend. See CEO 82-75 and CEO 77-83. For example, in previous opinions we have determined the "agency" of an employee of the Department of Health and Rehabilitative Services ("DHRS") by analogy to the department/division/bureau model specified in this definition. Therefore, we have found that an employee of a DHRS (or Department of Children and Families’) district is the district. Accordingly, we are of the opinion that your agency is District V.
For purposes of this provision, "business entity" also is defined at Section 112.312(5) to mean
any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state. [E.S.]
Because you have not indicated that you would be acting as a “purchasing agent” to purchase your manuscript for District V, we find that the first part of Section 112.313(3) does not apply.
We also are of the opinion that the second part of Section 112.313(3) is not implicated because there is no indication that you would be selling your manuscript to District V.
Section 112.313(7)(a), Florida Statutes, also prohibits you from having an employment or contractual relationship with a business entity which either is doing business with or is subject to the regulation of District V, your agency. It also prohibits you from having any contractual relationship or outside employment that would create a continuing or frequently recurring conflict of interest or impediment to the proper performance of your public duties. For purposes of this provision, "conflict of interest" is defined at Section 112.312(8), Florida Statutes, to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." 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 [employee’s] duties together with a review of his [or her] private employment to determine whether the two are compatible, separate, and distinct or whether they coincide to create a situation which 'tempts dishonor.'"
Because we have no information which indicates that you would be employed by or would be contracting with a business entity doing business with or subject to the regulation of District V, we are of the opinion that no first part of Section 112.313(7)(a) conflict would exist.
Although part of your public duties and responsibilities involves providing, arranging for, and encouraging opportunities for professional growth and development of your staff, such duties and responsibilities do not include developing or writing a “case management guide” for use by your staff. Therefore, we also find that your writing and publishing your manuscript for which you would receive an advance and/or royalties from the publisher would not create a continuing or frequently recurring conflict between your private interests relative to your manuscript and your public duties as a Senior Human Services Counselor Supervisor. In other words, under the scenario that you have presented we find that no prohibited conflict of interest would exist under the second part of Section 112.313(7)(a) because your public duties appear to be limited to providing overall management and supervision of District V staff involved with the provision of casework services to elderly and disabled adults in need of placement services and in no way involve the writing or publication of, or the selection of, a “case management guide” for your staff, the District, or the Department.
Section 112.313(8), Florida Statutes, also prohibits you from using information not available to the general public and gained by reason of your DCF position for your personal gain. In CEO 81-21, we observed that Section 112.313(8) was intended to prevent a public officer or employee from taking unfair advantage of his or her position to benefit himself or others through the use of information gained by virtue of his or her public position. Therefore, we consistently have interpreted this provision to find that the use of knowledge or expertise acquired by previous educational or work experience is not prohibited. See CEO's 77-40, 77-107, 78-81, 79-30 and 83-85. However, because you have indicated that your “case management guide” is based on your “years of experience as an employee of the State of Florida,” and that, although you have either omitted the names of DCF clients or provided fictitious names, the case examples are based on confidential records, you seemingly would be precluded by Section 112.313(8) from using that information for your own benefit.
Where the information used is not gained or developed independent of one's public position, we have found that the use of such information is prohibited. For example, in CEO 79-47, we advised that Section 112.313(8) would be violated if a public employee privately provided analysis and interpretation of data compiled by his agency to a foreign government. We opined that the uniqueness of the employee's position afforded him direct access to the data, direct experience in interpreting it, and direct knowledge of an existing market for such analysis and interpretation. Thereafter, in CEO 80-21, we found that Section 112.313(8) prohibited an employee of the State Courts Administrator's office, who had been employed by the State to direct a project on dispute resolution alternatives, from offering his services as a consultant relating to dispute resolution alternatives to organizations whose requests for assistance had been denied by that office. We found that some of the information that would be imparted by the employee, as a consultant, had been gained by reason of his years of research, preparation, and experience as an employee of the State Courts Administrator's office and had not been made available to members of the general public.
Similarly, we determined in CEO 81-54 that a program analyst in the Manpower Development Section of DHRS' Mental Health Program office could not form a consulting corporation to provide training in aggression control techniques developed by the Program Analyst as part of his employment with HRS to county psychiatric receiving facilities. Although the entities for which the program analyst proposed to provide training were not regulated by his agency, and he would not have been selling services to his own agency, we determined that Section 112.313(8) would be violated were he to provide such training because some of the information he would have been passing on as a consultant had not been made available to members of the general public.
Finally, in CEO 90-16, we found that a prohibited conflict of interest under Section 112.313(8) would be created were a retail operations supervisor in the Office of WIC (Woman, Infants, and Children) and Nutrition of DHRS retained to provide consulting services to a private firm under contract with the U.S. Department of Agriculture for purposes of evaluating retailer fraud in the WIC program. We determined that the employee would be using information acquired through his public duties and not available to the general public for the benefit of himself and the consultant.
In contrast, where the information used by the public employee is limited to public records that can be obtained from sources not directly connected with the employee's employment or position and/or developed from the employee's training and/or experience gained from outside or prior to his public employment, we have found no violation of Section 112.313(8) to exist. For example, in CEO 83-10, we determined that the Director of the Department of Education's Division of Public Schools could participate in the formation of a corporation which would develop, copyright, and sell materials on public education without creating a prohibited conflict of interest. We reasoned in part that the information that would be used by the Director, which was gained through his position, was limited to official public records that could be obtained from sources not directly connected with the Director's employment or position. We also noted that no sale of materials developed by the Department was involved.
In CEO 86-6, we also found that Section 112.313(8) would not be violated by an assistant public defender's receipt of payment from a newspaper for its publication of commentary which he wrote concerning the juvenile justice system and the case of a client of the public defender's office. We found that, notwithstanding the subject matter of the article being job-related, all of the information contained in the commentary about the case was a matter of court record.
In CEO 87-70, we concluded that no violation of Section 112.313(8) would be created were a city director of engineering to privately copyright and sell an engineering construction manual which was similar to one he had developed for the city. Although the original manual was developed on city premises, the actual writing, typing, and editing was done on the employee's personal time and prior to the director's employment with the city. A second manual had been developed by the director on his own time. While the city still would be allowed to produce, update, and sell the first manual, it was this second manual that the director proposed to copyright and sell. Our determination that Section 112.313(8) would not be violated was based in part on the fact that neither manual was written as part of the director's duties with the city, and on the fact that the manuals were developed based upon the director's 26 years of experience in the civil engineering field.
Finally, in CEO 88-2, we opined that no prohibited conflict of interest would be created were a staff attorney for the Department of Business Regulation to write a manuscript for a publishing company which was doing business with the Department, where the attorney was not responsible for purchasing publications for use by the Department, where the Department only purchased updates for particular publications from the publishing company which was the sole source of the updates, and where any information gained through the attorney's position and used in the manuscript was limited to official records.
Given the fact that the case histories or examples that you would be using are drawn from your years of experience, we believe that the issue of whether you are precluded from using information from confidential case files, where the identities of the Department’s clients remain confidential, for writing articles or books intended for publication and purchase and dissemination to human service professionals and/or students depends on how the information is characterized, that is, whether the information minus the client identifying information can be classified either as public records or information that is available to the general public.
Article I, Section 24, Florida Constitution, and Section 119.07, Florida Statutes, the public records law, makes all records made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency open for inspection by any person unless specifically exempted by Article I, Section 24, Florida Constitution, or by statute, or specifically made confidential by the Constitution. With respect to those records that you are concerned with, Sections 410.037 and 410.605, Florida Statutes, appear to apply. They provide respectively that information about disabled adults receiving services under Sections 410.031 - 410.036 (relating to home care for disabled adults) and under the Community Care for Disabled Adults Act which is received by DCF or its authorized employees, or by persons who provide services to disabled adults or elderly persons as volunteers or pursuant to contracts with the Department, is confidential and exempt from Section 119.07(1). Specifically exempted from public disclosure is information that identifies a disabled adult without the written consent of the person or is or her legal guardian. Thus, the statutory exemption seems to be concerned with client identifying information, rather than with general case histories.
While we cannot conclude that such case histories minus the client identifying information are public records, we believe that the position we took in CEO 75-141 relative to Question 6 is equally applicable here. There we stated:
Assuming that the knowledge required to produce academic books or materials derives at least in part from one's employment experience as a university faculty member, the publication or other dissemination of such books or materials might be construed to constitute disclosure of information prohibited [Section 112.313(6), Florida Statutes (1974 Supp), now Section 112.313(8), Florida Statutes.]
We are of the opinion, however, that this provision could not reasonably be applied to university faculty who produce academic books, articles, studies, etc., as an outgrowth of their university work. The sharing of ideas and knowledge is basic to the philosophy of higher education, and members of university faculties are expected, in addition to their teaching and school service duties, to contribute to the scholarship in their respective fields. Research and publication are, in fact, of substantial importance in considerations of promotion and tenure.
We therefore believe that [Section 112.313(8)], supra, was not intended to restrict the dissemination of scholarly work by Dr. Flory [,a university faculty member,] inasmuch as the promulgation of such work constitutes a vital element of her employment.
Likewise, we do not believe that Section 112.313(8) was intended to be applied to situations such as yours, where the case histories minus the client identifying information that you would be using in your manuscript is intended for academic or professional development purposes and is an outgrowth of your work with the Department. Inasmuch as the development of your manuscript is not part of your official duties and would be written on your own time, we do not find that you would be taking unfair advantage of your position to benefit yourself or others through the use of the client case history information which was gained by virtue of your public position.
Accordingly, under the circumstances presented, we find that no violation of Section 112.313(8), Florida Statutes, would be created by your use of information from confidential Department case files, where the identities of the Department’s clients remain confidential, for developing and publishing a "case management guide." However, we caution that in order to avoid running afoul of Section 112.313(6), Florida Statutes, which prohibits you from using or attempting to use your official position to secure a special privilege or benefit for yourself or others where your actions are undertaken with a wrongful intent for the purpose of obtaining a special benefit resulting from actions which are inconsistent with the proper performance of your public duties, you should discuss your proposed use of the information with your employer for purposes of obtaining your employer's agreement that the information that you propose to use may properly be used by you.
ORDERED by the State of Florida Commission on Ethics meeting in public session on November 17, 2000 and RENDERED this 21st day of November, 2000.