CEO 97-8 -- March 6, 1997
CONFLICT OF INTEREST
PUBLIC ASSISTANCE SPECIALIST WHO MAKES ENTITLEMENT
DETERMINATIONS, INCLUDING FOR FOOD STAMPS, WORKING
AS A CASHIER AT A SUPERMARKET WHICH ACCEPTS FOOD STAMPS
To: (Name withheld at person's request) (Tallahassee)
Because violations of the law relative to food stamps reported to the Department of Children and Families' ("DCF") Economic Services Offices are forwarded to the USDA for investigation and because food stamp fraud is a criminal violation of Florida Law, a Public Assistance Specialist who makes entitlement determinations, including food stamp entitlements, has a public responsibility to report fraudulent activities that she becomes aware of. Were the Public Assistance Specialist to be employed part-time as a cashier at a supermarket which accepts food stamps, a conflict of interest prohibited by Section 112.313(7)(a), Florida Statutes, between her private interests in keeping her part-time employment and on behalf of the supermarket and the performance of her public duties, as a Public Assistance Specialist, would be created.
Does the dual employment of a Department of Children and Families District 2 employee, as a Senior Public Assistance Specialist and a part-time cashier in a local supermarket, create a prohibited conflict of interest under the Code of Ethics for Public Officers and Employees?
Your question is answered in the affirmative.
You advise that the employee who is the subject of this opinion is employed as a Senior Public Assistance Specialist by the Florida Department of Children and Families ("DCF") Economic Services Office in District 2. Her duties, you advise, involve making initial and ongoing determinations of eligibility for public assistance programs, including food stamps. Her written position description indicates that among her specific duties are the following:
· Assisting the Public Assistance Specialist Supervisor (PASS) with the approval of auxiliary and flat benefits, extension of certification periods and in-unit case transfers and functioning as the Acting PASS in the absence of the PASS;
· Conducting interactive interviews for the purpose of collecting/updating data on applicants/recipients and their household members; inputting this data to the FLORIDA computer system; using probe interviewing techniques to prevent fraudulent activities; and informing applicants/recipients regarding the categories of HRS benefits available and of their rights and responsibilities;
· Interpreting and presenting information to applicants/recipients regarding potential benefits for which they are eligible;
· Assisting customers in clarifying and obtaining verification documents required to establish eligibility, including required signatures; initiating collateral contacts as necessary to validate information provided by customers; and writing referral letters to other agencies and requests for records, as necessary.
The employee's written position description also indicates that she reviews the "more error-prone and complex cases" and conducts in-unit training for the other Public Assistance Specialists. She also is expected to carry a "50% caseload."
You are concerned that if the employee were to work as a cashier in the supermarket, she inevitably would handle food stamps with which public assistance recipients pay for their groceries. You indicate that there do not appear to be any issues regarding whether the supermarket is licensed, inspected, or otherwise regulated by DCF or regarding referrals of clients by DCF to the supermarket. You also indicate that the employee has not been involved in the development or establishment of any contractual relationship between the supermarket and the District. However, you ask whether a prohibited conflict of interest is created if one of the employee's clients regularly shops at the store where she works as a cashier.
Relevant to your inquiry is the following provision of the Code of Ethics:
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 or she is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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 or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]
The first part of this provision prohibits the employee from having an employment or contractual relationship with a business entity or agency which is subject to the regulation of, or is doing business with, her agency. As it is used in the Code of Ethics, the term "agency" means
any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university. [Section 112.312(2), Florida Statute.]
In previous opinions we have said that the Legislature intended by this definition to define a State employee's agency as the lowest departmental unit within which his or her influence might reasonably be considered to extend. See, for example CEO 82-75. We also have determined the "agency" of an employee of the Department of Health and Rehabilitative Services (the forerunner of DCF) by analogy to the department/division/bureau model specified in the definition. For the reasons expressed in CEO 83-84, which references other prior opinions on the same subject, we are of the opinion that the subject employee's "agency" is District 2 for purposes of the Code of Ethics.
Because you advise that there are no issues regarding the licensure, inspection, or regulation of the supermarket by the District, the first part of Section 112.313(7)(a) does not appear to be applicable. However, the second part of Section 112.313(7)(a) also prohibits the employee from being employed by the supermarket if it would create a continuing or frequently recurring conflict between her private interests, that is, her employment with the supermarket, and the performance of her duties, as a Senior Public Assistance Specialist, or would impede the full and faithful discharge of those duties.
For purposes of the Code of Ethics, a "conflict of interest" is defined in Section 112.312(8), Florida Statutes, to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." Based upon this definition, the Court in Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982), held that Section 112.313(7)(a) "establishes an objective standard which requires an examination of the nature and extent of the public officer's [or 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.'" Therefore, the issue for us to determine here is whether the employee's interests and her private responsibilities as a cashier for the supermarket, where she might be handling the food stamps or other entitlement funds of one or more of her clients, could coincide with her public duties to "tempt dishonor," rather than with whether, through self-imposed limitations, she could avoid succumbing to the temptation of using her position for private benefit and, thereby, avoid disregarding her public duties and the public interest. See CEO 92-30 and CEO 91-34.
In applying Section 112.313(7)(a), we also are cognizant of Section 112.316, Florida Statutes, which 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.
This provision requires that the Code of Ethics not be interpreted to preclude private employment which does not interfere with the full and faithful discharge of a public employee's duties. See CEO 92-30 and CEO 86-30.
In CEO 93-26, we observed that because one of the central 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 or she is associated, we have consistently 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 or her agency and business entity. In CEO 83-92, for example, we applied Section 112.316 to find that outside employment by a State employee with a private entity doing business with his agency was permissible where the employee's responsibilities had no involvement with the private entity. We also advised in CEO 84-99 that a regional detention center supervisor for DHRS could work as a part-time counselor with an alcohol and drug treatment program contracting with the Department because the supervisor's public duties did not concern the private program or its contract and because he was not in a position to make referrals to the private program. And in CEO 88-28 we advised that a DHRS protective services counselor would be permitted to work for a private program contracting with DHRS because she had no role in the contract and could not make or influence referrals to her private employer.
We also advised in CEO 85-73 that where a DHRS employee seeks employment with a private entity, we will look at the employee's role in the regulatory process over the private entity and the employee's role in any contracts between the Department and the private entity. We also advised that we consider whether the employee is in a position to make referrals of DHRS clients to the private entity. If there is no conflict in these respects between the outside employment and the employee's duties, we typically have found no prohibited conflict of interest. For example, in CEO 83-84, where a physician employed by a State Hospital inquired about owning an adult congregate living facility with his wife, we found no prohibited conflict of interest to exist since he did not have the authority to make referrals of patients to particular facilities and he played no role in the licensing and regulation of ACLF's. In CEO 87-20, where a DHRS District Screening Coordinator also inquired about owning an adult congregate living facility, we found no prohibited conflict of interest to exist because she played no role in the regulation, inspection, or funding of the facility. Additionally, she was not in a position to make referrals to her facility. Finally, in CEO 88-47, we found that because a Public Assistance Specialist with a DHRS District's Economic Services Program, who owned an adult congregate living facility, was not in a position to influence the regulation of or referrals to her facility or payments to its clients, no prohibited conflict of interest was created.
Here, however, although the employee is not in a position to give advice or recommendations regarding any business transacted between District 2 and the supermarket, and although she does not have any role in the regulatory process over the supermarket and probably is not in a position to make or influence referrals to her private employer, for the reasons stated in CEO 88-23, we are of the opinion that a prohibited conflict of interest would exist were she to work as a cashier for a supermarket which accepts food stamps. In CEO 88-23, we observed that the USDA authorizes stores to accept food stamp coupons and that stores that accept stamps for improper items can lose the right to accept stamps through USDA enforcement. We also noted that although the Department of HRS, DCF's predecessor, has no control over stores, violations of the law reported to the Economic Services Office are forwarded to the USDA for investigation. Moreover, we noted that food stamp fraud is a criminal violation of Florida Law. Consequently, because the employee appears to have a public responsibility to report fraudulent activities that she becomes aware of, we are the opinion that her responsibilities as a Public Assistance Specialist are not separate and distinct from her interests as an employee of the supermarket accepting food stamps. Rather, they coincide in a manner which could lead to a disregard of her public duties.
Our opinion should not be interpreted as implying that the employee would disregard her public duties for a private benefit. Rather, it should be viewed as a situation where the employee's private interests and her public duties would overlap and conflict.
Accordingly, we find that a prohibited conflict of interest would be created were the employee to be employed as a cashier in a supermarket which accepts food stamps while she remains employed by DCF, as a Senior Public Assistance Specialist.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 6, 1997, and RENDERED this 12th day of March, 1997.
Mary Alice Phelan