CEO 93-8 -- April 22, 1993
CONFLICT OF INTEREST
CITY FIRE DEPARTMENT PARAMEDICS AND EMTS EMPLOYED
BY AMBULANCE SERVICES OPERATING UNDER A CITY'S
ZONE PROVIDER SYSTEM
To: Harold H. Hollander, Chief, Fire Rescue Division, Fire and Rescue Department (Jacksonville)
No prohibited conflict of interest is created under Section 112.313(7)(a), Florida Statutes, if a paramedic or EMT employed by a city's Fire and Rescue Department works part-time for an ambulance service which, under the city's "zone provider system," is assigned to an area outside of the area in which the EMT or paramedic responds to emergency calls in his public capacity. While under the "zone provider system" the EMT or paramedic no longer has the discretion to refer a patient for transportation to a particular provider, he still retains the discretion of whether to have Fire and Rescue transport the patient or, through the Department's emergency operations center, refer the patient for transport by a zone provider. If the EMT or paramedic is employed part-time during his off-duty hours by an ambulance service which is assigned to a zone covering an area outside of the area served by the EMT or paramedic in his public capacity, a decision by the EMT or paramedic to call for transport of the patient by the zone provider serving the same area served by him in his public capacity will not be influenced by regard for the interests of his private employer. Therefore, neither a continuing or frequently recurring conflict between his private interests and the performance of his public duties is created nor, under these circumstances, should his private employment interfere with the full and faithful discharge of his public duties.
Is a prohibited conflict of interest created if, during their off-duty hours, Fire and Rescue Department personnel who, as part of combat or rescue units respond to emergency calls for assistance, work for or are officers of private ambulance services which provide transportation for basic life support patients, where the Department refers patients to the ambulance services through its zone provider referral system?
If the off-duty EMT or paramedic works part-time for an ambulance service which is assigned to a zone covering an area outside of the area in which he responds to emergency calls in his public capacity, your question is answered in the negative.
In your letters of inquiry and response to questions of staff, you ask whether the Fire and Rescue Department's implementation of a "Zone Provider" referral system within the Department's service area for all qualified providers ("ambulance services") providing transport for basic life support (BLS) patients or other patients, who are not transported by Fire and Rescue, changes our conclusions in CEO 86-34, CEO 84-19, and CEO 81-76. You advise that prior to the development of this system, the Fire and Rescue officer in charge exercised his own discretion in recommending a specific private provider. However, under the new system, the officer simply requests a "zone provider" and the Department's communications center contacts the provider for the area. Fire and Rescue field units have "no specific knowledge" as to which provider will respond, you write.
You advise that the Department's service area is divided into four zones which were created with the advice and consent of the four private ambulance services in the area. A different ambulance service is assigned as primary provider to each of the four zones and must maintain a physical presence in the zone, you advise. In addition, in the event that the primary provider is unable to respond, alternate providers are assigned to the zone. An alternate provider is a primary provider in another zone who, by agreement among the providers, is assigned as backup to another primary provider, you write. Although a fifth ambulance service operates in the area, that provider provides only inter-facility transport services and, therefore, is not assigned to a zone.
You advise that providers are required to respond when called by the City's Emergency Operations Center or must notify their backup if they are unable to respond for some reason. A provider's failure to respond without justification may, in the future, result in its suspension or removal from the zone provider system by the City's Department of Regulatory and Environmental Services in accordance with the provisions of the draft City ordinance (Chapter 159 -- Emergency Medical Transportation Services) that you provided to us. The ordinance provides, among other things, that acceptance by the zone providers of a certificate to operate is acceptance by them of responsibility to follow the requirements of the zone provider system without regard to the patient's ability to pay, as well as to respond to calls within the maximum time limits established by the implementing rules. You also advise that the provider is paid for its services by the patient or third party payor.
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 his public duties, or which impedes the full and faithful discharge of his duties, in this case as an EMT or paramedic.
As we found in CEO 81-76, we find again here that because the BLS ambulance services are regulated by the City's Department of Regulatory and Environmental Services rather than by the Fire and Rescue Department, and because the zone providers cannot be said to be doing business with the Fire and Rescue Department, no conflict of interest in violation of the first part of Section 112.313(7)(a), Florida Statutes, exists. For purposes of Section 112.313(7)(a), the phrase "conflict of interest" is defined at Section 112.312(8), Florida Statutes, to mean "a situation in which regard for a private interest tends to lead to disregard of public duty or interest. With respect to the second part of Section 112.313(7)(a), we again find as we found in CEO 81-76 (see also CEO 92-9) as follows:
Neither Section 112.313(7)(a) nor [Section 112.313(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 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 more concerned with what might happen in a given situation than with what actually happens.
In CEO 86-34, CEO 84-19, and CEO 81-76, to which you referred in you letter of inquiry, we found that Section 112.313(7)(a), Florida Statutes, would prohibit paramedics and EMT's 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 companies or to obtain business for their private employers by determining whether the services of their companies were necessary in a particular situation. Again, in CEO 92-9, we stated that our concern has been that the decision made by a paramedic or an EMT of whether to allow a private ambulance company to transport a patient not be influenced by regard for the interests of the paramedic's or EMT's private employer.
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 they coincide to create a situation which 'tempts dishonor.'" Zerwick v. State Commission on Ethics, 409 So. 2d 57, 61 (Fla. 4th DCA 1982). Thus, while under the City's "zone provider system," the EMT or paramedic will no longer have the discretion to refer a patient for transportation to a particular provider, the discretion as to whether to transport or refer a patient for transportation to a zone provider through the Department's Emergency Operations Center still remains with the EMT or paramedic. We therefore remain concerned that the EMT's or 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, particularly if the EMT or paramedic is employed by the zone provider in whose zone the EMT or paramedic is carrying out his public duties.
We note that 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.]
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. In CEO 92-9, we noted that one of the fundamental purposes of Section 112.313(7)(a) is to prohibit those situations in which a public officer or employee awards public business to a business with which he is associated. Thus, assuming that a publicly employed EMT or paramedic is employed during his off-duty hours by a provider which is assigned to a zone covering an area outside of the area served by the EMT or paramedic in his public capacity, then, under such circumstances, his private employment should not interfere with the full and faithful discharge of the EMT's or paramedic's public duties. In addition, we find that under these circumstances any decision by the EMT or paramedic to call for transport of a patient by a zone provider will not be influenced by regard for the interests of his private employer, thereby not creating a continuing or frequently recurring conflict between his private interests and the performance of his public duties.
In your letter of inquiry, you indicate that under the City's "zone provider system," the Department's communications center contacts the zone provider for the area to provide transportation for a BLS patient on a "rotation basis." This "rotation basis" procedure would be significant to our opinion if there was, in fact, a rotation system in place because Section 112.313(12)(a), Florida Statutes, creates an exemption to the prohibition of Section 112.313(7) where:
Within a city or county the business is transacted under a rotation system whereby the business transactions are rotated among all qualified suppliers of the goods or services within the city or county.
We find, however, that a rotation system is not in place under the City's zone provider system and, therefore, Section 112.313(12)(a) is not applicable here. The ambulance service that is contacted by the Department's communications center in any given situation depends upon which provider zone the BLS patient is in rather than on the ambulance service's place on a provider rotation list. Thus, contrary to your assertion, field units should be aware of which provider will respond to an emergency call if they are aware of which provider zone they are in.
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 the City's paramedics and EMT's to work part-time on their off-duty hours for a BLS provider which is assigned to a zone covering an area outside of the area served by the EMT's or paramedics in their public capacities.