CEO 81-31 -- May 14, 1981

CONFLICT OF INTEREST

D.H.R.S. DISTRICT MENTAL HEALTH PROGRAM SUPERVISOR PROVIDING CONSULTATION TO MENTAL HEALTH SERVICE PROVIDER

To: (Name withheld at the person's request.)

SUMMARY:

A prohibited conflict of interest would be created were a district mental health program supervisor with the Department of Health and Rehabilitative Services to contract with a nonprofit corporation to provide services as a consultant to a mental health service provider which receives funds from the local mental health board. Section 112.313(7)(a), F. S., prohibits a public employee from having a contractual relationship which would present a frequently recurring conflict of interest or which would impede the full and faithful discharge of his public responsibilities. Since the program supervisor would be placed in a position of advising the local mental health board about matters which were his responsibility as a private consultant and in a position of monitoring the services provided by a facility to which he would be providing services privately, Section 112.313(7)(a) would prohibit the proposed consultant relationship.

QUESTION:

Would a prohibited conflict of interest be created were you, a district mental health program supervisor with the Department of Health and Rehabilitative Services, to contract with a nonprofit corporation to provide services as a consultant to a mental health service provider receiving funding from the local mental health board?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you are employed by the Department of Health and Rehabilitative Services as Mental Health Program Supervisor for District X. In your position, your responsibilities include serving as liaison between the District and the local mental health board; participating in site visits to service providers conducted by board staff; providing technical assistance to the board; evaluating the operation of the board; and reviewing the board's district mental health plan based on the program priorities of the Department and the needs of the District.

In addition, you advise that the mental health board, with the approval of and subject to regulations of the Department, is authorized to contract for the implementation and operation of community mental health programs with any hospital, clinic, institute, or other appropriate service provider, using State funds on a local matching basis. In doing so, the mental health board receives and disburses State funds to contracted service providers.

You further advise that the mental health board has entered into an agreement with the Broward County Division of Mental Health to operate a psychiatric facility comprised of a crisis screening and stabilization unit, Baker Act receiving facility, and intensive residential treatment center. In turn, the County Division of Mental Health has subcontracted with a nonprofit mental health institute which is not regulated by your Department to provide medical, psychiatric, quality assurance, standards development, and clinical management services to the County psychiatric facility. You question whether you may subcontract with the institute to provide consultation to the County facility in matters regarding clinical management, standards development, and quality assurance review.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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), F. S. (1981).]

The first portion of this provision prohibits you from having a contractual relationship with a business entity which either is subject to the regulation of, or is doing business with, your agency. As your position carries district-wide responsibilities, and as district program supervisors are appointed by each district administrator under Section 20.19(4)(c)6, F. S. (Supp. 1980), we find that your "agency" is District X of the Department. See CEO 81-2.

Under the circumstances you have presented, the nonprofit mental health institute with which you propose to contract would not be doing business with District X of the Department, but rather with the County Division of Mental Health. Nor is the institute subject to the regulation of the Department, you have advised. Therefore, the first part of Section 112.313(7)(a) would not prohibit the consultation you propose.

The second portion of Section 112.313(7)(a) prohibits you from having a contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of your public duties. In a previous opinion to you, CEO 80-32, we advised that Section 112.313(7)(a) would not prohibit you from providing administrative and clinical services to the nonprofit mental health institute, which at that time received no funding through the local mental health board. However, in the present situation not only will the institute be receiving funds from the mental health board through its contract with the County Division of Mental Health, but also you will be providing consultation personally to the County facility.

In our view, this contractual relationship would present a frequently recurring conflict with your responsibilities as Mental Health Program Supervisor for the District and would impede the full and faithful discharge of those responsibilities. A "conflict of interest" is defined as a situation in which regard for a private interest tends to lead to disregard of a public duty or interest. Section 112.312(6), F. S. We perceive that regard for your private interest as a consultant to the County mental health facility would tend to lead to disregard of your responsibility independently and impartially to serve as liaison between the District and the mental health board, which is funding the facility; to participate in site visits of the facility; to provide assistance to the mental health board; and to review the board's district mental health plan. Thus, you would be placed in a position of advising the mental health board about matters which were your responsibility as a consultant and of monitoring the services provided by a facility to which you would be providing services privately.

Accordingly, we find that a prohibited conflict of interest would be created were you to contract to provide services as a consultant to a mental health service provider receiving funding from the local district mental health board.