CEO 97-14 -- May 29, 1997

 

CONFLICT OF INTEREST

 

PUBLIC ASSISTANCE SPECIALIST LICENSED TO

PROVIDE FAMILY DAY CARE HOME SERVICES IN HER HOME

 

To: Katie George, Acting District One Chief Legal Counsel, Florida Department of Children and Families (Pensacola)

 

SUMMARY:

 

No prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, would be created by the licensing of the home of a Department of Children and Families Public Assistance Specialist as a family day care home by the District which employs her, because she works in the District's Economic Services Section and plays no role in the licensure or inspection of family day care homes; that is the role of the District's Day Care Licensing Section. CEO's 84-39, 84-97, 85-73, and 88-47 are referenced.

 

As long as the Public Assistance Specialist does not provide family day care home services to clients who apply for, are eligible to receive, or are receiving public assistance benefits from the District's Economic Services Program, and does not accept referrals from District employees, no prohibited conflict of interest under the second part of Section 112.313(7)(a) is created by her providing family day care home services on her own time and in her own home. CEO's 84-56, 86-61, and 87-68 are referenced.

 

QUESTION:

 

Would a prohibited conflict of interest be created were a Public Assistance Specialist employed by a Department of Children and Families district to be licensed by the district to provide family day care home services in her own home?

 

Under the circumstances presented, your question is answered in the negative.

 

In your letter of inquiry, you ask whether a prohibited conflict of interest would be created were a Public Assistance Specialist, who holds the title of Human Services Consultant III, to be licensed by District One of the Department of Children and Families to provide family day care home ("FDCH") services in her own home. You are concerned that a conflict may exist by virtue of the District's licensing of one of its own employees.

In an earlier letter you indicated to our staff that the Public Assistance Specialist proposed to care for children in her home Monday through Friday from 6:00 p.m until 6:00 a.m. and on Saturdays from 6:00 a.m. until 6:00 p.m. Pursuant to questions posited by our staff, you also advised that a "family day care home" is a home in which child care is regularly provided for children from at least two unrelated families. The FDCH operator receives a payment, fee, or grant, you advise, for one or more of the children receiving care, whether or not the home is operated for profit. You advised further that children are placed daily in the FDCH while their parent(s) work or attend school. Payment is made to the operator of the home, you advise, either in full by the parent or subsidized in part by the community child care coordinating agency (Children's Services Center). Finally, you advise that the home would be licensed by the Day Care Licensing Office for District One.

You advise that if a parent applies and qualifies for a subsidy under one of the federal programs administered by the District and selects a licensed home to provide day care, a monthly check is sent directly to the operator/FDCH from the Children's Services Center, the District's contract agent. The check is made out in the name of the parent, but it is mailed to the FDCH, where the parent signs it over to the FDCH operator. The payment amount, you advise, is based on the number of hours the child spends at the FDCH and the age of the child.

You advise that the subsidized child care program also provides benefits to children identified as "at-risk." Included in the definition of "at-risk" children, at Section 402.3015, Florida Statutes, are:

 

         children of participants in the Florida Employment Opportunity Act pursuant to Section 409.029, Florida Statutes;

         children of other Aid to Families with Dependent Children and Supplemental Security Income clients who work 20 hours or more per week or are participating in training programs leading to employment;

         children of migrant farm workers, Native Americans, or teenage parents; and

         children of working parents whose family incomes do not exceed 150 percent of the federal poverty income guidelines.

 

You are concerned that due to the nature of the Public Assistance Specialist's job, a possibility exists that the children in her FDCH could be determined eligible for public assistance benefits prior to, during, and/or after receiving FDCH services, that is, that they could be subsidized by Title 20 and receive voucher certificate funding through the Department's Children's Services Center.

Attached to your inquiry is a copy of the Public Assistance Specialist's written position description. It indicates that she is assigned to District One's Economic Services Unit. Included among her responsibilities are the following:

 

         Making initial and continuing determinations of eligibility for Public Assistance Programs (i.e., Food Stamps, Aid to Families with Dependent Children, AFDC - Foster Care Medical Assistance and SSI-related programs), including authorizing benefits for Retroactive Medicaid, Extended Medicaid, and posthumous benefits for those eligible under specific regulations and criteria;

         Serving as a member of an interagency team that helps FTP (Family Transition Program) participants attain permanent economic independence from the welfare system;

         Establishing and maintaining supportive relationships with families in order to encourage participation, promote success, strengthen motivation, and enhance self-control in the families' lives;

         Conducting comprehensive interviews for the purpose of collecting/updating data on applicants and their household members;

         Preventing fraudulent activities through the use of interviewing techniques, as well as identifying causes of possible fraud, overpayment, and over issuance for referral to the Benefit Recovery Unit and taking corrective action on Quality Control and Monitoring reports; and

         Providing orientation for FTP participants prior to authorization.

 

You advise that the Public Assistance Specialist has indicated that she would not provide FDCH services to clients for which she determines eligibility for public assistance benefits. However, notwithstanding the Public Assistance Specialist's assurances you are concerned that the eligibility determination of some of her clients could be made during or after the children are already receiving FDCH services in her home.

Relevant to your inquiry is the following provision of the Code of Ethics for Public Officers and Employees:

 

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 Public Assistance Specialist 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 the Department of Children and Families) 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 One for purposes of the Code of Ethics.

Under the first part of Section 112.313(7)(a), we must determine whether a prohibited conflict of interest is created by virtue of the District's licensing the Public Assistance Specialist to provide FDCH services, that is, since her FDCH would be a "business entity," as that term is defined at Section 112.312(5), Florida Statutes[1], we must determine whether she would have an employment or contractual relationship with a business entity which either is doing business with or is regulated by her agency, District One. As we previously have advised that ownership of a business entity, i.e., the FDCH, constitutes an employment or contractual relationship with that entity (See CEO 83-84 and 87-20), we are of the opinion that the Public Assistance Specialist's ownership of the FDCH would constitute an employment or contractual relationship with the FDCH.

In CEO 83-84, we found that no violation of the first part of Section 112.313(7)(a) would be created by the ownership of an adult congregate living facility (ACLF) by a physician employed by the Northeast Florida State Hospital, whose agency for purposes of the application of Section 112.313(7)(a) was HRS District Four, where the ACLF also was licensed by District Four. We found that the physician's position at the N.E. Florida State Hospital was sufficiently divorced from the District's regulatory activities over the ACLF that his employment at the ACLF would not place him in a conflict of interest. We based our opinion on our reasoning in CEO 77-147, where we found that various employees of a county department of public health were not prohibited from being employed by nursing homes which were licensed and regulated by their department, where the employees had no responsibility with respect to nursing homes, were not in a position to supervise or regulate those persons who were responsible for regulating nursing homes, and therefore were not in a position to obtain preferential treatment from or award public business to the nursing homes which employed them. There, we applied Section 112.316, Florida Statutes, which provides as follows:

 

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.

Consequently, because we find that the Public Assistance Specialist, who works in the District's Economic Services Section, plays no role in the licensure or inspection of FDCH's (that is the role of the District's Day Care Licensing Section), no prohibited conflict of interest under the first part of Section 112.313(7)(a) would be created by the licensing of her home as a FDCH by District One.[2]

The second part of Section 112.313(7)(a) also prohibits the Public Assistance Specialist from providing FDCH services on her own time if it would create a continuing or frequently recurring conflict between her private interests, that is, her provision of FDCH services, and the performance of her duties as a 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 [or her] private employment to determine whether the two are compatible, separate, and distinct or whether they coincide to create a situation which 'tempts dishonor.'"

We therefore must determine whether the Public Assistance Specialist's providing FDCH services on her own time and in her own home would create a continuing or frequently recurring conflict between her private interests and the performance of her duties as a Public Assistance Specialist, or would impede the full and faithful discharge of those duties. Here, we also are of the opinion that no prohibited conflict would exist as long as the Public Assistance Specialist does not provide FDCH services for clients or individuals who either receive public assistance benefits or apply for and/or are eligible to receive public assistance benefits from the District.

In an opinion very analogous to the Public Assistance Specialist's situation, CEO 86-61, we advised another public assistance specialist, who was employed in the Medically Needy Unit of an HRS district's Economic Services Program and whose responsibilities included determining clients' eligibility for Medicaid based upon specific criteria, that no prohibited conflict of interest would be created were he to engage in the business of providing services to elderly and disabled persons, as long as his business did not provide services to persons eligible for the services of the Department and as long as the business did not accept referrals from Department employees. We also suggested that, in order to avoid the appearance that the employee had used his position for his private benefit, he should work with his supervisor to notify Department employees who were in a position to receive inquiries concerning those services that the employee was involved in that particular business and that referrals should be made to businesses providing the requested services other than the employee's business. Under these circumstances, we found that the employee's business would not create a continuing or frequently recurring conflict of interest or impede the discharge of his public duties in violation of the second part of Section 112.313(7)(a). See also CEO 84-56 and CEO 87-68.

Here, the Public Assistance Specialist has indicated that she would not provide FDCH services to clients for which she determines public assistance eligibility. However, we are of the opinion that her assurances do not go far enough. We find that as long as the Public Assistance Specialist does not provide FDCH services to clients who apply for, are eligible to receive, or are receiving public assistance benefits from the District's Economic Services Program, and does not accept referrals from District employees, no prohibited conflict of interest would be created by her providing FDCH services on her own time and in her own home. As we indicated in CEO 86-61, CEO 84-56, and CEO 87-68, we also suggest that the Public Assistance Specialist work with her supervisor to notify District employees who are in a position to receive inquiries concerning FDCH services that she is involved in providing this service and that referrals of District clients should be made to other FDCH's.

Our opinion that a prohibited conflict of interest would be created were the Public Assistance Specialist to provide services to District clients or those persons who are eligible for public assistance benefits from or through the District should not be interpreted as implying that the employee would disregard her public duties for a private benefit. Rather, it should be viewed as reflecting a situation where the employee's private interests and her public duties would overlap and conflict.

Accordingly, we find that because the Public Assistance Specialist, who works in the District's Economic Services Section, plays no role in the licensure or inspection of FDCH's, no prohibited conflict of interest under the first part of Section 112.313(7)(a) would be created by the District's licensing of her home as a FDCH. We also find that as long as she does not provide FDCH services to clients who apply for, are eligible to receive, or are receiving public assistance benefits from the District's Economic Services Program, and does not accept referrals from District employees, no prohibited conflict of interest under the second part of Section 112.313(7)(a) would be created by her providing FDCH services on her own time and in her own home.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on May 29, 1997 and RENDERED this 3rd day of June, 1997.

 

 

 

__________________________

Mary Alice Phelan

Chairman

 



[1] "Business entity" means any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust whether fictitiously named or not, doing business in this state. [Section 112.312(5), Florida Statutes. [Emphasis supplied.]

[2] Similarly see CEO 84-39 (no prohibited conflict of interest created by the ownership of a day care center by an Office Data Entry Operator of the Office of Disability Determinations in District IV, where the day care center would be licensed by the day care licensure office of the District.); CEO 84-97 (no prohibited conflict of interest created by the part-time employment of a Public Assistance Supervisor, who was responsible for the determination of financial eligibility of Medicaid clients, by a nursing home which did not accept Medicaid payments.); CEO 85-73 (no prohibited conflict of interest created by the weekend employment of an HRS district's Children, Youth and Families Program's intake counselor with an adolescent group home which is licensed by and contracts with the Department, where the employee has no involvement with the licensing of the home, the contract between the Department and the home, or referrals from the Department to the home.); and CEO 88-47 (no prohibited conflict of interest exists where a public information specialist employed by an HRS district owns an adult congregate living facility licensed by the district's Office of Licensure and Certification).