CEO 12-18 August 1, 2012

CONFLICT OF INTEREST

DCF SUPERVISOR FOR FOOD STAMP PROGRAM EMPLOYED PART-TIME AT GAS STATION/CONVENIENCE STORE


To:        Name withheld at person's request (Fort Pierce)

SUMMARY:

A DCF supervisor who supervises agency staff who determine eligibility for food stamps does not have a conflict of interest prohibited by Section 112.313(7)(a), Florida Statutes, due to her part-time employment at a gas station/convenience store that accepts food stamps. CEO 97-8 and CEO 97-15 are receded from to the extent that their reasoning differs materially from our findings herein.1


QUESTION:

Does the part-time employment of a DCF food stamp program supervisor, who supervises agency staff who determine eligibility for food stamps, as a cashier at a gas station/convenience store create a prohibited conflict of interest under the Code of Ethics for Public Officers and Employees?


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


You relate that you are an Economic Self-Sufficiency Specialist Supervisor for the Department of Children and Family Services ("DCF"), working in the ACCESS Florida food stamp program. You have been offered a position as a cashier at a local gas station/convenience store on a part-time basis. You have determined that the gas station/convenience store where you would be employed accepts food stamp benefits. Therefore, you inquire whether a part-time position with the gas station/convenience store will create a prohibited conflict of interest with your position at DCF.

You indicate that as an attendant/cashier at the gas station/convenience store your duties would be to operate the cash register, stock shelves, and clean the inside and outside premises. Your current responsibility at DCF is to supervise agency staff who determine client eligibility for food stamps. You state that food stamp case-processing within DCF currently is such that neither you, as supervisor, nor your staff has actual in-person contact with any clients receiving food stamps. All matters regarding food stamp eligibility for your program are accomplished online or via telephone interviews with applicants. You state that the food stamp eligibility procedure commences with an interviewer, whom you do not supervise, and from that point the cases are reviewed and forwarded to the next available DCF case worker. Neither the agency, nor yourself as a supervisor, is able to select a specific case worker for any specific food stamp eligibility case. You further relate that DCF is not involved in the licensure, inspection, or regulation of the gas station/convenience store, and that DCF does not have any responsibility in the granting of authority to any business to accept food stamps.

Relevant to your inquiry is Section 112.313(7)(a), Florida Statutes which provides:


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.


The first part of this provision prohibits a public employee from having employment or a contractual relationship with a business entity or agency which is subject to the regulation of, or is doing business with, her agency. As you advise that there are no issues regarding the licensure, inspection, or regulation of the gas station/convenience store by DCF, the first part of Section 112.313(7)(a) does not appear to be applicable.

The second part of Section 112.313(7)(a) prohibits private employment of a public employee if the employment would create a continuing or frequently recurring conflict between the employee's private interests and the performance of her public duties, or would impede the full and faithful discharge of her 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 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."

In CEO 97-15, we found such a temptation to dishonor, similar to a previous finding in CEO 97-8, when we concluded that a prohibited conflict of interest would be created were a senior public assistance specialist to work part-time in a supermarket which accepted food stamps. In reaching this determination, we observed that violations of the law relative to food stamps reported to DCF economic services office are forwarded to the USDA for investigation, food stamp fraud is a criminal violation of Florida law, and a public assistance specialist who made entitlement determinations, including food stamp entitlements, had a public responsibility to report fraudulent activities. Consequently, we found that the employee's responsibilities to report food stamp fraud might conflict with her interest in maintaining her employment as a cashier of a supermarket which accepts food stamps.

Your written position description and service class specification do not specifically indicate a responsibility on your part to report food stamp fraud, although you might generally be presumed to have such a responsibility. Nevertheless, given that you are not in a position to interact face-to-face with applicants for the food stamp program, do not give advice or recommendations regarding any business transacted between the food stamp program and the gas station/convenience store, do not have any role in any regulatory process over the business, and have no duty in your public capacity to refer public assistance clients to the convenience store that would employ you, the reasoning of CEO 97-8 and CEO 97-15 seems to us to work too harsh a result. Thus, we find that no prohibited conflict of interest would be created were you to be employed by the gas station/convenience store under the circumstances presented. To the extent the reasoning of CEO 97-8, and CEO 97-15 is contrary to our finding herein, we recede from it.

Your question is answered accordingly.


ORDERED by the State of Florida Commission on Ethics meeting in public session on July 27, 2012 and RENDERED this 1st day of August, 2012.


____________________________________

Susan Horovitz Maurer, Chair


[1]Prior opinions of the Commission on Ethics can be obtained at www.ethics.state.fl.us.