CEO 84-2 -- January 26, 1984

CONFLICT OF INTEREST

DISTRICT MENTAL HEALTH BOARD MEMBER'S SPOUSE EMPLOYED BY COUNTY MENTAL HEALTH CENTER

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

SUMMARY:

The Code of Ethics for Public Officers and Employees does not prohibit a district mental health board member's spouse from employment as the executive director of a county mental health center receiving funds from the board. Nonprofit corporations organized under Chapter 617, Florida Statutes, such as district mental health boards, constitute business entities and not governmental agencies under the Code of Ethics. Therefore, the standards of conduct contained in the Code of Ethics do not apply to district mental health board members. CEO 83-6 is referenced.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit a District Mental Health Board member from serving on that Board while her spouse is employed as the executive director of a county mental health center receiving funds from the District Board?

Your question is answered in the negative.

In your letter of inquiry you advise that .... has been appointed by the Osceola County Commission to serve on the local District Mental Health Board. You also advise that her husband is employed by a mental health center within the County which receives funds from the District Board.

The provisions of the Code of Ethics for Public Officers and Employees contained in Part III of Chapter 112, Florida Statutes, apply to public officers, public employees, and candidates for public office. For example, Section 112.313(3), Florida Statutes, provides:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

Section 112.313(1), Florida Statutes, defines "public officer" to include

any person elected or appointed to hold office in any agency, including any person serving on an advisory body.

As we found in CEO 83-6 with respect to members of local health councils, we find that members of district mental health boards do not hold office in an "agency," but rather serve as directors of corporate business entities. The term "business entity" is defined in Section 112.312(3), Florida Statutes, to mean

any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise , association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state.

District mental health boards, like local health councils, are nonprofit corporations organized under Chapter 617, Florida Statutes. Section 394.69(5), Florida Statutes (1983). Therefore, as a private, nonprofit corporation doing business in this state, the District Board is a business entity and not an "agency," a term which is defined as follows:

'Agency,' means any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university. [Section 112.312(2), Florida Statutes (1983).]

Accordingly, we find that the subject member of the District Mental Health Board is not subject to the standards of conduct contained in the Code of Ethics for Public Officers and Employees. As this opinion affects the rationale, but not the result, of previous opinion CEO 81-68, we do not revoke that opinion.