CEO 94-2 -- January 27, 1994
CONFLICT OF INTEREST
D.H.R.S. CLINICAL PSYCHOLOGIST AT STATE HOSPITAL EMPLOYED
BY COMPANY ACTING AS OUTSIDE EVALUATOR OF HOSPITAL RESIDENTS
TO: Ms. Cheryl Y. Brantley, Hospital Administrator, South Florida Evaluation and Treatment Center (Miami)
A prohibited conflict of interest would exist under the second part of Section 112.313(7)(a), Florida Statutes, where a clinical psychologist at a forensic state hospital is employed by a private corporation to perform forensic evaluations on individuals who are, or may become, residents at the facility where the psychologist is employed. CEO's 90-2, 88-10, 86-52, 86-30, 85-8, and 82-41 are referenced.
Would a prohibited conflict of interest be created were a Clinical Psychologist for a Department of Health and Rehabilitative Services Evaluation and Treatment Center to be employed on a part-time basis by a corporation and, in that capacity, prepare forensic evaluations on individuals after his regular duty hours?
Under the circumstances presented, your question is answered in the affirmative.
In the information you have provided, we are advised that Dr. Gerard Garcia is employed by the Department of Health and Rehabilitative Services as a Clinical Psychologist at the South Florida Evaluation and Treatment Center (SFETC). SFETC is a maximum security forensic mental health facility which, you advise, receives residents from the criminal justice system for evaluation and treatment related to their competency to stand trial.
The employee's duties at SFETC are directly involved with the evaluation process for the residents after they are committed to the facility by the criminal justice system. The employee is required to evaluate the resident, conduct treatment activities, write reports for the court related to the resident's competency, and, when necessary, personally testify in court.
You further advise that the employee also works on a part-time basis for a private corporation which provides psychological services to the local court system. On more than one occasion, you relate, the employee has performed forensic evaluations of SFETC residents in his private capacity while those residents were committed to the facility. Although the individuals evidently evaluated by the employee were not assigned to his floor, he did make determinations as to whether the residents would be found competent, subsequently discharged from the facility, and returned to court. You also are concerned that where the employee performs forensic evaluations on individuals prior to their competency determination, the possibility exists that the employee eventually might be called upon to treat the individuals as facility residents. You question whether a prohibited conflict of interest is created by this situation.
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 (1993).]
As the employee's outside employment does not involve a business entity or agency which is doing business with or is regulated by his agency, we address only the second portion of this prohibition. The second portion of Section 112.313(7)(a), Florida Statutes, 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 public duties.
In a factually similar opinion, we previously opined that a senior psychologist at the same facility would not violate this statute, where he served in his private capacity as an expert examiner on matters of competency, insanity, and dangerousness. See CEO 86-52. However, there, the psychologist had no direct responsibility for evaluating or treating residents of the facility except in rare instances. In other opinions, we have permitted similar dual employment situations where the employee works with individuals who have no present connection to their facility. See CEO 82-41, CEO 85-8, CEO 86-30, CEO 88-10, and CEO 90-2.
Here, we believe that acting as an outside evaluator to perform forensic evaluations on residents of the Center could result in a conflict between the employee's private interests and the performance of his public duties and impede the full and faithful discharge of his public duties. In making this finding, we do not question the personal integrity of the psychologist or mean to suggest that he would not be objective in evaluating residents in either his public or private capacity. However, the second part of Section 112.313(7)(a) establishes an objective standard which requires an examination of the nature of the public employee'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." See Zerwick v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982). Where the employee in his private capacity makes a recommendation contrary to the position of the Department, or is critical of the treatment activities undertaken by the facility on behalf of the resident, we believe that the employee's public and private employment are incompatible and that his private employment could serve as an impediment to the full and faithful discharge of his public duties. The distinct possibility also exists that the employee's private activities would harm the Department's credibility with the court, where the Department and its employees are expected to serve as an objective third party in competency proceedings. By this opinion we do not conclude that a clinical psychologist at the facility would be foreclosed from all outside employment, but we do find that the potential for conflicts under Section 112.313(7)(a), Florida Statutes, exists where psychologists perform forensic evaluations on individuals who are, or are likely to become, residents of the facility.
Your question is answered accordingly.