CEO 89-15 -- April 13, 1989
CONFLICT OF INTEREST
DHRS DISTRICT PROGRAM MANAGER SERVING AS
CONSULTANT TO COUNTY SCHOOL BOARD
To: (Name withheld at the person's request.)
A prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where a Department of Health and Rehabilitative Services district program manager is under contract to provide consulting services to a county school board. The individual's employment with the school board creates a continuing or frequently recurring conflict of interest or impedes the full and faithful discharge of her duties as district program manager, as she ultimately is responsible for contractual agreements between DHRS and the school board.
Does a prohibited conflict of interest exist where a Department of Health and Rehabilitative Services district program manager contracts to provide consulting services relating to emotionally disturbed children with a county school board, when the school board is a contract provider of the district?
Under the circumstances presented, your question is answered in the affirmative.
In your letter of inquiry you advise that . . . is a District Program Manager for District Nine of the Department of Health and Rehabilitative Services. In this position, she is responsible for directing, supervising, and monitoring program organizational units for Alcohol, Drug Abuse and Mental Health Services, Children's Medical Services, Developmental Services/Residential Services, and Medicaid Services. You further advise that she is under contract with the Palm Beach County School Board to provide consulting services regarding emotionally disturbed children. Her contract requires her to provide consultation and therapy for staff, parents, and students involved in the School Board's Severely Emotionally Handicapped Program. The School Board uses federal funds to pay for these consulting services.
You state that five contracts currently exist between the Department and the School District. The School Board provides child day care services in accordance with one of these contracts. Another contract requires the School Board to provide pre-service training for administrative support staff of the District. Also, DHRS and the School Board also have entered into a working agreement to provide literacy services pursuant to the Florida Model Literacy Program Act of l987. The District Program Manager has no involvement with any of these programs, you advise.
The Department and the School Board also have contracted for case management services. The intent of this system is to provide improved case management to a minimum of 18-20 high priority clients including adolescents in state mental hospitals, children and adolescents in residential mental health facilities, children and adolescents on the waiting list for such placements, and at-risk children and adolescents. Additionally, the two agencies have entered into a comprehensive early identification contract whereby the School Board provides community outreach, screening, evaluation, and case management services for County children below age five who are at risk of becoming developmentally delayed or disabled to ensure appropriate educational placement. You state that the person who monitors the case management contract is supervised by the Alcohol, Drug Abuse and Mental Health program supervisor, who is supervised by the District Program Manager. Also, the District Program Manager supervises the individual responsible for the comprehensive early identification contract. You state that neither of these programs are under the auspices of the School Board's Emotionally Handicapped and Severely Emotionally Handicapped Director. Further, you indicate that while it is possible for Department clients to be referred to the School Board's Severely Emotionally Handicapped Program, such a decision would be based on a determination by the School Board of a handicapping condition and could not be influenced by the District Program Manager.
The Code of Ethics 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), Florida Statutes (1987).]
The first part of this provision prohibits a public employee from having a contractual relationship with a public agency which is doing business with her agency. Although the Department and the School Board have numerous contracts with each other, in previous advisory opinions we have determined that contracts between governmental agencies for the provision of services are not within the contemplation of this prohibition. See CEO 76-2, where we stated that Section 112.313(7)(a) is not to be employed to restrict that business which is transacted among governmental entities but to prohibit private gain other than remuneration provided by law. Also, see CEO 76-77, CEO 80-5, and CEO 81-5.
The second portion of Section 112.313(7)(a), Florida Statutes, prohibits a public employee from having any employment or contractual relationship that will create a continuing or frequently recurring conflict or that would impede the full and faithful discharge of her public duties. In our view this provision would be violated as the District Program Manager is ultimately responsible for contractual agreements between DHRS and the School Board.
Previously, we have found that the Code of Ethics would not prohibit Department employees from outside employment where they played no role in any contracting process between the Department and their outside employer, where their public duties were unrelated to the employer and any contract with the Department, and where they were not in a position to make referrals to the outside employer. See, for example, CEO 86-63 and the opinions cited therein. Also, see CEO 83-92, in which we stated that no prohibited conflict of interest would be created were a project manager of the Department of Transportation to provide consulting services to a city within his district where his departmental responsibilities were not related to contracts which existed between DOT and the city. In that opinion we cited CEO 83-50, where a DHRS employee who played no role in a contracting process sought to consult with the organization contracting with the Department. Conversely, see CEO 88-34 in which we found a prohibited conflict of interest would be created were a DHRS district intake counselor supervisor to teach classes for a private nonprofit corporation where she supervised individuals who made referrals to that corporation.
For the purposes of the Code of Ethics, the term "conflict of interest" is defined to mean "a situation in which regard for a private interest tends to lead to a disregard of a public duty or interest." Section 112.312(6), Florida Statutes. We are of the opinion that in the present case the District Program Manager has such a conflict as she is required to supervise individuals who are responsible for contracts between the Department and the School Board. In reaching this conclusion we do not mean to imply that the subject employee actually would be influenced by the interests of her outside employer when evaluating a public contract. We previously have advised that Section 112.313(7)(a) does not require proof that a public employee has acted impartially or otherwise acted corruptly, but that the statute is entirely preventative in nature. See, CEO 81-76, in which we stated that the statute is directed at potential conflicts of interest and therefore is directed toward what might happen in a given situation rather than with what actually happens.
Accordingly, we find that a prohibited conflict of interest exists where the subject Department of Health and Rehabilitative Services District Program Manager provides consulting services to the County School Board.