CONFLICT OF INTEREST
PHOSPITAL DISTRICT BOARD COMMISSIONER EMPLOYED BY NONPROFIT
ORGANIZATION THAT BENEFITS FROM BOARD SPONSORED EVENTS
To: Samuel S. Goren, General Counsel, North Broward Hospital District
No prohibited conflict of interest is created under Section 112.313(3) or 112.313(7), Florida Statutes, where a member of a Hospital District Board is employed by a nonprofit organization, when the Hospital District sponsors events and other activities that result in contributions to the nonprofit organization.
Would a prohibited conflict of interest exist for a member of a Hospital District Board of Commissioners to be employed by a nonprofit organization, when the district, from time to time, sponsors events and other activities that result in contributions to the nonprofit organization?
Under the circumstances presented, your question is answered in the negative.
You advise the North Broward Hospital District is governed by a seven member Board of Commissioners appointed by the governor. The members are "public officers" subject to Part III, Chapter 112, F.S. On behalf of board member Jennifer O’Flannery Anderson ("board member") you have requested a formal opinion regarding her position as a board member and her private employment. You indicate the board member has served in this position since January 2010. You further indicate the board member is also employed as the President and Chief Executive Officer of the United Way of Broward County ("United Way"). She is hired by, and reports to, the United Way’s Board of Directors. United Way is a separate 501(c)(3) organization serving Broward County under the guidelines of United Way Worldwide, a national, nonprofit organization.
You state the District, from time to time, hosts and/or sponsors events that benefit local charities and non-profit organizations related to enhancing the District’s service to the community and the improvement to health services in the county. The United Way has in the past been chosen to be one of the beneficiaries of such events. The District and the United Way have had a long-standing relationship which predates the board member’s appointment to the District’s Board of Commissioners. You further observe the Board is historically not involved in the selection of the organizations to benefit from these charitable events and that those decisions are typically made by sponsorship committees from the various hospitals which are part of the North Broward Hospital District. You represent there have not been any increases in the charitable giving by the district to the United Way since the board member’s appointment, nor have there been any significant changes in the relation between the two (2) entities.
Section 112.313(3), Florida Statutes expressly provides, in relevant part, as follows:
DOING BUSINESS WITH ONE’S AGENCY.—No … 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 … is an officer, partner, director, or proprietor or in which such officer … has a material interest. Nor shall a public officer … acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer’s … own agency, if he or she is a state officer … to any political subdivision or any agency thereof, if he or she is serving as an officer or employee of that political subdivision. … This subsection shall not affect or be construed to prohibit contracts entered into prior to:
(c) Appointment to public office.
While the board member is a "public officer", she is not "an officer, partner, director or proprietor" of United Way, nor does she have a substantial "material interest" therein. Therefore any action of the District to offer charitable contributions to the United Way would not be a violation of 112.313(3), Florida Statutes. The board member is merely an employee of United Way.
In CEO 10-07, dated April 21, 2010, in considering whether a board member of this same board had a conflict of interest resulting from his employment with a vendor doing business with the District, the Commission concluded there was no conflict of interest since the District’s relationship with the board member’s employer predated the member’s appointment to the board. Similarly, the relationship between the United Way and the District predates this board member’s appointment to the board and the board itself has no direct role in the continuation or regulating of the nature of that relationship.
Section 112.313(7), Florida Statutes, expressly provides, in relevant part, as follows:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.—(a) No public officer … of an agency shall have or hold any employment …with any business entity … which is … doing business with, an agency of which he or she is an officer … nor shall an officer …of an agency have or hold any employment …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.
Clearly the relationship between the District and United Way existed prior to this board member’s appointment to the Board of Commissioners. It furthers appears this board member had no role or influence in the District’s continuing the relationship with United Way. Nor does it appear the position of board member and employment as executive director of United Way create a "continuing or frequently occurring conflict" contemplated by the statute.
Section 112.316, Florida Statutes, further provides, in relevant part, as follows:
CONSTRUCTION.--- It is not the intent of this part, nor shall it be construed, to prevent any officer …of a state agency … or other political subdivision of this state … from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer … of his or her duties to the state … or other political subdivision of the state involved.
The relationship between the District and United Way began years before this board member was appointed to serve as a member of the Board of Commissioners for the North Broward Hospital District and it does not appear from the representations made that the board member’s employment with United Way would interfere with the "full and faithful discharge" of the duties of a member of the District Board of Commissioners.
Accordingly, we find that no prohibited conflict of interest is created under Section 112.313(3) or 112.313(7), Florida Statutes.
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 21, 2011 and RENDERED this 26th day of October, 2011.
Susan Horovitz Maurer, Vice-Chair