CEO 92-9 -- March 6, 1992
CONFLICT OF INTEREST
CITY FIRE DEPARTMENT PARAMEDICS AND EMTS
EMPLOYED BY A PRIVATE AMBULANCE SERVICE
CONTROLLED BY A HOSPITAL
To: Harold H. Hollander, Chief, Fire Rescue Division, Public Safety Department (Jacksonville)
No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a number of paramedics and EMT's assigned to first responding units of the City's Fire Rescue Division to work part‑time for an ambulance service which is a subsidiary of a holding company which also operates the hospital which contracts with and runs the ambulance service. Because the EMT's and paramedics would be associated with the ambulance service and not directly with the hospital, another subsidiary of the holding company, their relationship with the hospital would be sufficiently removed so that any conflict that does exist is not so substantial as to interfere with the full and faithful discharge of their public duties.
Is a prohibited conflict of interest created if a City's paramedics and EMT's also are employed by an ambulance company owned by a holding company which also operates a hospital which controls the services that the ambulance service provides?
Your question is answered in the negative.
In your letter of inquiry and response to questions from staff, you advise that a number of paramedics and EMT's assigned to first responding units of the Fire Rescue Division of the Jacksonville Public Safety Department would like to work part‑time on their off‑duty hours at a local ambulance company run by the for‑profit holding company which also runs a local medical center. The information that you received from the ambulance service indicates that it provides advanced life support transportationwithin the medical center's health care network. The ambulance service has advised you that it has no desire to be included in the City's "T.O.L." (Top of the List) for 911 calls and that it will not be competing with the Jacksonville Fire and Rescue Department.
You advise that the ambulance service would not respond to "street" calls or other routine first responder type calls. You advise that the ambulance service will be controlled by the medical center. You agree that there exists the possibility of some conflict of interest based on preferences of individual paramedics as to where to transport patients; however, you do not believe that this conflict is very significant in light of the comprehensive "Transport and Destination Policy" of the Department. You advise that there are advantages to permitting your employees to work in such positions during their off‑duty hours, such as increased training and experience. You note that these same City employees are permitted to work for air ambulance services affiliated with area hospitals because of the lack of competition between the services, and you believe that situation gives rise to the same potential for personal preferences as would those working for this ambulance service. See, for example, CEO 86-34, Question 1, and CEO 88-64. We note, however, that these opinions address the question of conflicts arising from the possibility of a patient being referred for transportation services to the private air ambulance service, rather than to a particular health care facility.
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.]
This provision prohibits a public employee from having or holding any employment or contractual relationship with a business entity or agency which is doing business with, or is regulated by the employee's public agency. It also prohibits a public employee from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of public duties, or which impedes the full and faithful discharge of the duties of an EMT or paramedic.
As we found in CEO 81-76, we also find here that the EMT's or paramedic's "agency" is the Fire Rescue Division of the Jacksonville Public Safety Department. Section 112.312(2), Florida Statutes. Under the circumstances that you have described, it does not appear that the ambulance service can be considered to be doing business with the Fire Rescue Division. Also, as we noted in CEO 81-76 (and we assume that this has not changed), pursuant to Part I, Chapter 414, of the City Code, ambulance services within the City are required to obtain a certificate issued by the City Council subject to suspension or termination by action of the City Director of Health, Welfare, and Bio‑Environmental Services and by the City Council. In addition, emergency and nonemergency medical transportation services are required to be licensed by the Florida Department of Health and Rehabilitative Services pursuant to Chapter 401, Florida Statutes. Because the Fire Rescue Division appears to have no regulatory responsibilities over ambulance services within the City, and because the ambulance service cannot be said to be doing business with the Fire Rescue Division, we find that the first part of Section 112.313(7)(a), Florida Statutes, does not apply to the situation as you have described it.
The remaining question, therefore, is whether the EMT's and paramedic's part‑time off‑hours employment with the ambulance service which has a contractual relationship with the hospital, and which also is owned by the holding company which owns the ambulance service, would present a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of their public duties. For purposes of Section 112.313(7)(a), the phrase "conflict of interest" is defined in the Code of Ethics 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(8), Florida Statutes (1991). We found in CEO 81-76 as follows:
Neither Section 112.313(7)(a) nor [Section 112.312(6)] contains any language which requires proof that a public officer or employee has failed to perform his responsibilities, has not acted impartially, or otherwise has acted corruptly. The statute is entirely preventive in nature and is intended to maintain the respect and confidence of the people in their government by preventing certain situations in which private economic considerations may override the faithful discharge of public responsibilities. Thus, the statute is directed at potential conflicts of interest and thus is more concerned with what might happen in a given situation than with what actually happens.
We have found in previous opinions that Section 112.313(7)(a), Florida Statutes, would prohibit paramedics employed with governmental agencies from being employed by private ambulance companies doing business in the jurisdiction of their agencies, where the paramedics were in a position to make referrals to the private ambulance company or to obtain business for their private employer in determining whether the services of that company were necessary in a particular situation. See CEO 86-34, CEO 84-19, and CEO 81-76. Our concern has been that the decision made by a paramedic or an EMT of whether to allow the private ambulance company to transport a patient not be influenced by regard for the interests of the paramedic's or EMT's private employer. We noted in CEO 88-57 that Section 112.313(7)(a), Florida Statutes, requires us to examine the nature and extent of a public employee's duties and his private employment "to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'" Zerwick v. State Commission on Ethics, 409 So.2d 57, 61 (Fla. 4th DCA 1982). As in CEO 88-57, we are concerned here with the possibility that a paramedic's outside employment may tempt him to dishonor his duties to the public, because his decision may affect irrevocably the life and health of patients.
We are advised that under established written protocols, the City's paramedics and EMT's are required to recommend that the patient be transported by ambulance for diagnosis and treatment. The Department's "Transportation and Destination Policy" lists the following, which an officer‑in‑charge at the scene will consider in determining the closest hospital to which a patient should be transported:
1. Factors affecting transport times such as traffic, weather conditions, and other mitigating factors.
2. The hospital's ability to provide specialized care if known by the rescue crew. Consideration by the rescue crew will include such things as availability of neuro‑ surgery, OB‑GYN capability, operating room availability, specialized diagnostic capacity, emergency room overcrowding, and optimum patient care.
3. Patients who request another hospital after being advised of the Rescue unit's intended destination will be transported to their hospital of choice if the medical condition of the patient permits.
We find that this policy leaves the City's paramedics and EMT's with quite a bit of discretion as to where to transport a patient. Our concern in this situation is that the decision made by the EMT or paramedic as to where to transport a patient not be influenced by regard for the interests of the paramedic's private employer.
However, the Code of Ethics also provides:
Construction.‑‑It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency, or county, city or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county city, or other political subdivision of the state involved. [Section 112.316, Florida Statutes (1991).]
This provision mandates that the Code of Ethics not be construed to prohibit a public employee from engaging in private pursuits which do not interfere with the full and faithful discharge of his public duties. One of the fundamental purposes of Section 112.313(7)(a) is to prohibit those situations in which a public officer or employee obtains preferential treatment from, or awards public business to, a business with which he is associated. Thus we have interpreted Section 112.316 to apply to situations in which an employee is not in a position to give advice or recommendations regarding any business transacted between his agency and a business entity. See CEO 88-2. Here, the EMT's and the paramedics would be associated with the ambulance service, which is a subsidiary of a holding company, and not with the hospital, which is another subsidiary or the holding company.
In previous opinions, we have treated each corporate subsidiary as a separate "business entity" in applying the Code of Ethics under Section 112.313(7)(a), Florida Statutes. See CEO 88-63 and CEO 79-55. Therefore, because the paramedics and EMTs would be associated with the ambulance service and not directly with the hospital, we find that their relationship to the hospital would be sufficiently removed so that any conflict which might exist would not be so substantial as to prohibit the paramedics and EMT's from working part‑time during their off‑duty hours for the ambulance service.
Accordingly, under the circumstances presented, we find that no prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were paramedics and EMT's assigned to first responding units of the City's Fire Rescue Division to work part‑time on their off‑duty hours for an ambulance service operated by a holding company which also operates a hospital which contracts with the ambulance service for transportation services within the facility's health care network. We find that such private employment would not interfere with the full and faithful discharge of an EMT's or paramedic's public duties.