CEO 92-5 -- January 24, 1992
CONFLICT OF INTEREST
D.H.R.S. PHARMACY PROGRAM MANAGER
CONSULTING WITH PHARMACEUTICAL MANUFACTURER
CONTRACTING WITH DEPARTMENT
To: Mr. Jerry Wells, Pharmacy Program Manager, Department of Health and Rehabilitative Services (Tallahassee)
A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a Pharmacy Program Manager in the Technical Health Services program of the Department of Health and Rehabilitative Services to provide consulting services to a pharmaceutical manufacturer whose products are purchased by the Department. Although the proposed consulting work would be limited to an analysis of Medicaid reimbursement programs in states other than Florida, the employee's continuing involvement with the Florida Medicaid program, as well as his advisory role in the procurement of pharmaceuticals by the Department, would create a continuing or frequently recurring conflict of interest between his private interests and the performance of his public duties, or which could impede the full and faithful discharge of his public duties. CEO's 90-16 and 88-23 are referenced.
Would a prohibited conflict of interest be created were you, a pharmacy program manager employed by the Department of Health and Rehabilitative Services in Pharmacy Services, to consult with a pharmaceutical manufacturer on matters involving Medicaid programs in other states where the manufacturer's products are purchased by the Department?
Your question is answered in the affirmative.
In your letter of inquiry and in subsequent information provided to our staff, you have advised that you are employed by the Department of Health and Rehabilitative Services (HRS) in theTechnical Health Services Program as Pharmacy Program Manager. While current responsibilities do not include development of coverage or reimbursement policy for pharmaceuticals, you advise that you do serve on a pharmacy advisory committee as a non-voting coordinator. This committee recommends stocking and distribution of program-specific items by the Department's central pharmacy for distribution to County Public Health Units. You further advise that you are not involved in the contracting or direct purchasing of pharmaceuticals, although you do function in an advisory capacity. Prior to March, 1991, you were employed by the Department as a Pharmacy Program Manager in the Florida Medicaid Program.
You advise that you have been requested by a pharmaceutical manufacturer to act as a consultant to the company on matters limited to analysis and recommendations regarding data supplied by various state Medicaid programs as a result of federal legislation requiring rebates from manufacturers. The company is interested in engaging the services of a person with an understanding of state reimbursement programs and familiarity with the applicable federal requirements. In that you served on the Technical Advisory Group for the Health Care Financing Administration's implementation of the national rebate program, and participated in establishing rebate programs for the Florida Medicaid program prior to the enactment of the federal legislation, it was felt that your qualifications in this area are unique. You further relate that your consulting work would exclude any review related to Florida Medicaid. You inquire whether your employment with this pharmaceutical manufacturer would create a prohibited conflict of interest.
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), Florida Statutes (1991).]
The first part of this provision would prohibit you from being employed by the manufacturer if it is regulated by or doing business with your agency, while the second portion of the statute would prohibit you from engaging in the proposed employment if it would create a continuing or frequently recurring conflict between your private interests and the performance of your public duties at HRS or would impede the full and faithful discharge of those duties.
We are of the view that providing the proposed consulting services to the pharmaceutical manufacturer would create a continuing or frequently recurring conflict between your private interests and the performance of your public duties at HRS and would impede the full and faithful discharge of your public duties. Section 112.312(8), Florida Statutes, defines "conflict" as "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." In the case of Zerwick v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982), the Court stated that this statute "requires an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'" In CEO 88-23, we advised that an HRS Food Stamp Supervisor could not own or be employed by a store that accepted food stamps because a continuing or frequently recurring conflict of interest would be created. In a factual situation somewhat similar to yours, we advised in CEO 90-16 that an HRS employee in the WIC program could not be employed as a consultant to a firm conducting a study of WIC programs in various states, because the employee would be retained to assist in the evaluation of a program that was within the employee's public responsibility.
While you have indicated that you are no longer involved with the Florida Medicaid program, because of the number of years you worked in that program as Medicaid Pharmacy Program Manager, you continue to provide formal and informal consultation to a variety of state and county agencies on pharmaceutical services to clients. You also state that your current position provides Medicaid billing services to the County Public Health Units for immunizations and family planning services provided to Medicaid eligible clients. Moreover, while you state that your current duties do not include the direct procurement of pharmaceuticals, the HRS Central Pharmacy does report to your office. Purchases by the Central Pharmacy are directed by the various program offices served and reflect the desired formularies for each of these programs. Although you have indicated that your consulting work would not include the Florida Medicaid program but would be limited to states outside of Florida, it appears to us that because of your ongoing relationship with the Medicaid program, and because of your involvement in the procurement of pharmaceuticals, albeit advisory, if you were to have an employment or contractual relationship with a pharmaceutical manufacturer under these circumstances, it could create a continuing or frequently recurring conflict between your private interests and the performance of your public duties so as to impede the full and faithful discharge of your public duties. In reaching this conclusion, we do not mean to imply that you would disregard your public duties for a private benefit, but we do view the situation as one where private interests and public duties do overlap, with such a result being possible.
Accordingly, we find that a prohibited conflict of interest would be created were you, a Pharmacy Program Manager for Technical Health Services in the Department of Health and Rehabilitative Services, to provide consulting services for a pharmaceutical manufacturer whose products are purchased by the Department.