CEO 92-30 -- June 5, 1992

CONFLICT OF INTEREST

SCHOOL PSYCHOLOGISTS ENGAGING IN

PRIVATE PRACTICE

To: Kenneth Kranz, Attorney at Law (Tallahassee)

SUMMARY:

No prohibited conflict of interest is created under Section 112.313(7)(a), Florida Statutes, when school psychologists engage in private practices in which they provide services such as assessment, counseling, consultation, and program development to students of the school district which employs them as long as they comply with the provisions of Section 116 of Chapter 92-149, Laws of Florida, which amended Chapter 490, Florida Statutes, by creating Section 490.0121, Florida Statutes, effective October 1, 1992. Although this amendment does not take effect until October 1, 1992, for purposes of the Code of Ethics, the amendment is found to be a present indication of legislative intent. To the extent that this opinion differs from CEO 91-65, then to that extent, CEO 91-65 is revoked.

QUESTION:

Would a prohibited conflict of interest exist were a school psychologist employed by a school district to engage in the private practice of school psychology in which he provides services such as assessment, counseling, consultation, and program development to students of the school district which employs him and to their parents?

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

Through your Joint Petition For Rehearing and Reconsideration and the letter of the attorney for the Florida Association of School Psychologists, writing on your behalf, you have asked us to reconsider our opinion CEO 91-65. In that opinion, we found that a prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, when a school psychologist for the Collier CountySchool District engages in a private practice in which he gives counseling, therapy, consultation, and psychoeducational evaluations to students of the school district which employs him and to their parents. However, we also found that as long as the school psychologists engage in their private practice during off-duty hours, their services are not provided to Collier County School students or their parents if the parents are eligible for the services through the School Board, and they do not accept referrals from School Board employees, no prohibited conflict would exist.

You advise that you are certified school psychologists employed by the Collier County Public Schools and engaged in private practice as licensed school psychologists.

In CEO 91-65, the Collier County School Board was concerned about whether a school psychologist who operates within the framework of their policy GCQAC violates any of the provisions of the Code of Ethics for Public Officers and Employees. Of particular concern to some members of the School Board's administration were possible conflicts that could arise during an administrative due process hearing held regarding a dispute between school system personnel and parents of a handicapped child. You have asked us to review our response to the School Board's concern in light of limitations that are imposed on your private practices through the school psychologist's licensing statute, your professional associations' "Principles of Professional Ethics" to which you advise that you are bound to adhere or face disciplinary action which could jeopardize your careers, and in light of the limitations imposed by Section 490.0121, Florida Statutes, which takes effect on October 1, 1992.

In prior opinions, we generally have advised that qualified D.H.R.S. and Department of Corrections personnel are not prohibited from engaging in private psychiatric or psychological practices within certain limitations. See CEO 88-10 and CEO 87-68. In contrast, in CEO 91-65, we were concerned that the second clause of the following Code of Ethics provision might be violated:

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.]

The second portion of this provision prohibits the school psychologists from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that will impede the full and faithful discharge of their public duties.

For purposes of the Code of Ethics, a "conflict of interest" is defined in 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 Zerwick 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 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.'" Our concern is whether the interests of the school psychologists and the nature of their private responsibilities could coincide with their public duties to "tempt dishonor," rather than with whether, through self-imposed limitations, they could avoid succumbing to the temptation of using either public resources or position for private benefit and thereby disregarding their public duties and the public interest. See CEO 91-34.

In applying Section 112.313(7)(a), Florida Statutes, we also are cognizant of Section 112.316, Florida Statutes, which provides:

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.

This provision requires that the Code of Ethics not be interpreted to preclude private employment which does not interfere with the full and faithful discharge of a public employee's duties. See CEO 86-30.

You advise that since we issued CEO 91-65, the Legislature enacted Chapter 92-149, Laws of Florida, which, at Section 116, amended Chapter 490, Florida Statutes, by creating Section 490.0121, Florida Statutes. This section takes effect on October 1, 1992. It specifically provides that a licensed school psychologist employed by a school district providing private sector services to students within that district shall not be in violation of Section 112.313(7), Florida Statutes, if:

(1) The parent, guardian, or adult client is informed in writing prior to provision of services of their eligibility for such free services from the school district.

(2) The client is not a student of the schools to which the school psychologist is currently assigned.

(3) The parent, guardian, or adult client is informed that, as a dual practitioner, the school psychologist may not function as an independent evaluator.

(4) The school psychologist does not promise 24-hour service or on-call services and does not engage in private practice during hours of contracted employment.

(5) The school psychologist does not use his position within a school district to offer private services or to promote a private practice.

(6) The school psychologist does not utilize tests, materials, or services belonging to the school district.

Although this amendment does not take effect until October 1, 1992, we find that for purposes of the Code of Ethics, the amendment is a present indication of legislative intent.

Accordingly, we find that as long as the school psychologists comply with the limitations set forth in Section 116 of Chapter 92-149, Laws of Florida, no prohibited conflict would exist if they provide services to some Collier County School students and/or their parents through their private practices. To the extent that this opinion differs from CEO 91-65, than CEO 91-65 is hereby revoked to that extent.

Please be advised that the Code of Ethics also contains the following prohibition:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes.]

Any attempt by the psychologists to use their official positions to solicit business for themselves could constitute a violation of this provision.