CEO 82-17 -- March 4, 1982
CONFLICT OF INTEREST
CITY EMPLOYEES SERVING ON ADVISORY COUNCIL TO INSURANCE CARRIER PROVIDING INSURANCE TO CITY EMPLOYEES
No prohibited conflict of interest would be created were a city's personnel director and risk management administrator to serve on an advisory council for an insurance carrier which provides health insurance to city employees, where the employees would receive only dinner and mileage expenses for bi-monthly dinner meetings of the advisory council. Although Section 112.313(7), Florida Statutes, prohibits a public employee from having a contractual relationship with a business entity which is doing business with his agency, Section 112.313(12)(f), Florida Statutes, would exempt transactions totaling $500 or less in any given calendar or fiscal year. In addition, it does not appear that the employee knows or with the exercise of reasonable care should know that the dinners and expenses are being given to influence his official action. Therefore, Section 112.313(4), Florida Statutes, would be inapplicable. However, this finding would not preclude the city from prohibiting its employees from serving on such an advisory council.
Would a prohibited conflict of interest be created were a city's personnel director and risk management administrator to serve on an advisory council for an insurance carrier which provides health insurance to city employees?
Your question is answered in the negative.
In your letter of inquiry you advise that the personnel director and the risk management administrator of the City of North Miami have been invited to serve on an advisory council to a health insurance carrier. The carrier provides one of three health plans available as an option to City employees, although neither of the other two current insurance carriers has an advisory council. The council, you advise, will meet bi-monthly to provide input from the general public, employers, and employees in such matters as the carrier's administrative practices, benefit structures, approaches to employers, employer relationships, and other matters. At these dinner meetings, the carrier will pay for the dinner of the participants on the council as well as paying mileage expenses incurred by the participants.
The Code of Ethics for Public Officers and Employees 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 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 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), Florida Statutes (1981).]
This provision prohibits a public employee from having any employment or contractual relationship with a business entity which is doing business with his agency. In a telephone conversation with our staff, you advised that the City pays at least a portion of the health insurance costs of City employees. Therefore, we find that the carrier is doing business with the City. However, we need not determine whether the subject employees would have an employment or contractual relationship with the carrier by virtue of their service on the advisory council, in light of an exemption to Section 112.313(7)where the "total amount of the subject transaction does not exceed $500." Section 112.313(12)(f), Florida Statutes. We previously have interpreted this provision to exempt transactions totaling $500 or less in any given calendar or fiscal year. See CEO 77-182. Under the circumstances you have presented, it does not appear that the subject employees would receive in excess of $500 from the carrier in any given year.
The Code of Ethics also provides:
UNAUTHORIZED COMPENSATION.-No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity. [Section 112.313(4), Florida Statutes (1981)].
In a previous opinion, CEO 80-27, we advised that this provision places the burden upon a public officer or employee to exercise reasonable care in determining whether a particular payment or thing of value has been given with the intent to influence his official action. Assuming the donor is in a position to be benefited by the employee's action, the employee should weigh the value of the thing received against the ostensible purpose for its being given. The larger its value, the more difficult it should be to justify its being given for any reason except to influence. Here, the value of what will be received by the employee--dinner every month plus mileage reimbursement--does not appear so substantial that it can be concluded that there is the intent to influence the official action of the subject employees,. For this reason, we find Section 112.313(4)to be inapplicable.
Accordingly, we find that no prohibited conflict of interest would be created were the subject employees to receive occasional dinners and mileage reimbursement for serving on an advisory council of an insurance carrier which provides health insurance for City employees. While this practice would not violate the Code of Ethics for Public Officers and Employees, we would observe that the City may prefer that its employees not participate on the advisory council in order to preclude any appearance that the employees might not be totally independent and impartial in their official dealings with the insurance carriers.