CEO 81-13 -- February 26, 1981
CONFLICT OF INTEREST
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES EMPLOYEE PRIVATELY CONDUCTING HOME STUDIES REGARDING REFUGEE CHILDREN PURSUANT TO FEDERAL GRANT
To: Alvin J. Taylor, Secretary, Department of Health and Rehabilitative Services, Tallahassee
No prohibited conflict of interest would be created were employees of the Department of Health and Rehabilitative Services, who are members of a private organization that is to receive a federal grant to conduct home studies on refugee children, to conduct such studies while not on State time pursuant to a federal grant. As they would be compensated by the organization for their services in preparing the home studies, the employees would have an employment or contractual relationship with the organization. However, the organization is not doing business with D.H.R.S., but rather with the Federal Office of Refugee Resettlement, and is not subject to the regulation of D.H.R.S. Further, because there is a unity of interest, rather than a conflict of interest as defined in Section 112.312(6), F. S., no violation of Section 112.313(7)(a), F. S., is perceived.
Would a prohibited conflict of interest be created were employees of the Department of Health and Rehabilitative Services, who are members of a private organization that is to receive a federal grant to conduct home studies on refugee children, to conduct such studies while not on state time pursuant to the federal grant?
Your question is answered in the negative.
In your letter of inquiry you advise that the Office of Refugee Resettlement (O.R.R.) of the U.S. Department of Health and Human Services is contracting with a private association, the Miami Association of Black Social Workers, Inc., for the Association to provide home studies of relatives of unaccompanied Haitian minors in the custody of O.R.R. Under the contract, the Association is to receive a direct federal grant to conduct the home studies; the individual home studies then will be assigned to members of the Association, whom the Association will in turn compensate for their efforts in providing the studies.
You also advise that approximately one-third of the members of the Association are employed by the Department of Health and Rehabilitative Services (D.H.R.S.) as Social Workers. If possible, the Association will assign home studies to members who are not employed by D.H.R.S. However, the Association would like to have the option of using and may need to use D.H.R.S.-employed workers if the workload becomes greater than expected. It is planned that staffing for home studies will be conducted during normal working hours, with D.H.R.S. employees requesting leave from the Department for the time involved in this phase of the project. The home studies themselves will be conducted after normal working hours. At the completion of home studies of relatives of the unaccompanied children, the studies will be turned over to D.H.R.S. for the purpose of effecting placement of these children with their relatives.
As with home studies done by D.H.R.S., you advise, the home study done by the Social Worker acting in a private capacity would not be binding upon the Department, which still would have final authority to approve or disapprove each home placement. You also advise that the Department decisions in these cases will not be made in the Department by workers who participated privately in the home studies contract.
Finally, you advise that O.R.R. provides funds to the Department for the provision of services to refugees, such as the unaccompanied children who would be involved in the home studies. Therefore, you believe that if D.H.R.S. employees are permitted to participate in the home studies contract, the Department's interests in providing maximum aid to refugees would be served.
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.]
The first part of this provision prohibits a public employee from being employed by, or having a contractual relationship with, a business entity which either is doing business with or is subject to the regulation of his agency. The private association of which the subject D.H.R.S. employees are members is a "business entity," as that term is defined in Section 112.312(3), F. S. As the members of the Association will be compensated by the Association for their services in preparing the home studies, the members of the Association would have an employment or contractual relationship with the Association.
However, the Association is not doing business with D.H.R.S. Rather, the Association's contract is with the Federal Office of Refugee Resettlement. Nor do we find that the Association is subject to the regulation of D.H.R.S. The Association is a private organization whose affairs are not regulated by the Department. In addition, you have provided no information which would indicate that the reports and studies made by the Association must be made in a manner to be approved by D.H.R.S. In this respect, we note that D.H.R.S. is not bound by any of the home studies to be done privately.
The second portion of Section 112.313(7)(a) prohibits a public employee from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. We are of the opinion that this provision would not prohibit members of the Association who are employees of D.H.R.S. from conducting home studies under the contract between the Association and the Office of Refugee Resettlement.
The Code of Ethics defines "conflict of interest" to mean "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 do not perceive that an employee's regard for his private interests in completing home studies for the private association would tend to lead to disregard of his public duties or interests. Initially, we note that services to be provided privately by D.H.R.S. employees would take place on the employees' own time with each employee having to take leave from his office employment in order to do so. An employee would not stand to gain personally from decisions made by D.H.R.S. Nor would the employee be in a position to review the work he had done privately when the Department makes its decision to approve or disapprove home placements for the refugee children, as you have advised that decisions on those cases will not be made by social workers who have participated privately in the contract for home studies. Most importantly, it appears that the Department and its employees in their private capacities have a unity of interest in seeing that the refugee children are placed in satisfactory homes as quickly as possible.
Accordingly, we find that no prohibited conflict of interest would be created were employees of the Department of Health and Rehabilitative Services, who are members of a private association receiving a federal grant to conduct home studies on refugee children, to conduct such studies while not on State time pursuant to the federal grant.