CEO 97-15 -- July 17, 1997

 

CONFLICT OF INTEREST

 

PUBLIC ASSISTANCE SPECIALIST EMPLOYED

AS CASHIER FOR CONVENIENCE STORE

 

To: (Name withheld at person's request) (Daytona Beach)

 

SUMMARY:

 

A prohibited conflict of interest under the second part of Section 112.313(7)(a) would be created were a Department of Children and Families' Public Assistance Specialist to be employed as a cashier at a convenience store or supermarket which accepts food stamps. CEO 97-8 is referenced. However, because the Public Assistance Specialist has no duty in his public capacity to refer public assistance clients to the convenience store or to any other store where they can use their food stamps, no prohibited conflict of interest would exist were the Public Assistance Specialist to remain employed by the convenience store if he performs duties other than acting as a cashier or manager or supervisor of any of the other cashiers.

 

Section 112.316, Florida Statutes, exempts from the prohibitions of Section 112.313(7)(a), Florida Statutes, business transactions occurring prior to the time that a public officer took office or a public employee began his or her public employment in situations where the first part of Section 112.313(7)(a) is implicated, not the second part. Because the convenience store is neither doing business with nor regulated by the Department of Children and Families District, the Public Assistance Specialist's part-time employment with the convenience store is not "grand fathered-in."

 

QUESTION I:

 

Does your dual employment as a Department of Children and Families District 12 Public Assistance Specialist and a part-time cashier in a convenience store create a prohibited conflict of interest under the Code of Ethics for Public Officers and Employees?

 

Your question is answered in the affirmative.

 

In your request for an opinion, you question the conclusion that we reached in CEO 97-8, where we found that a prohibited conflict of interest would be created were a Senior Public Assistance Specialist to work part-time in a supermarket which accepts food stamps. In reaching this conclusion, we reasoned that because violations of the law relative to food stamps reported to the Department of Children and Families ("DCF") Economic Services Office 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 he or she becomes aware of. Consequently, we found that the Public Assistance Specialist's responsibilities were not separate and distinct from her interests as an employee of the supermarket.

However, you argue that such dual employment is not a "temptation to dishonor."[1] On the contrary, you argue that your dual employment serves as a check and balance on the private entity to encourage it to follow the Department's food stamp policies which are posted in the convenience store or market. You also claim that your duties, as a Public Assistance Specialist, differ from those of the Senior Public Assistance Specialist discussed in CEO 97-8.

The written position description and career service class specification accompanying your request for an opinion indicates that among the responsibilities of a Public Assistance Specialist are the following:

 

         Conducting interviews to collect and/or update the personal data on public assistance applicants/clients and household member;

         Informing public assistance applicants/clients of the public assistance benefits available and the potential benefits for which they may be eligible;

         Determining the existence of public assistance benefit overpayments and or over issuance and advising the public assistance clients of such. Informing public assistance clients of discrepancies and of their obligations to repay and referring such occurrences to the Department's Benefit Recovery Section; and

         Referring cases of suspected fraud to appropriate authorities for investigation.

 

You advise that your duties for the convenience store include stocking shelves, cleaning the store, and operating the cash register. Half of your time, you write, is spent at the cash register and the other half is spent on your other duties. You also write that you have been employed by the company for three and one-half (3 1/2) years. Due to the low pay that a Public Assistance Specialist receives from the State, the income that you receive from this part-time employment, you claim, is crucial to providing a living wage for your family, you write. You also write that you enjoy working at the convenience store and do not believe that you should be required to terminate it. In the 3 1/2 years that you have worked in the store, you have never had any clients come in and use their food stamps. If they did, you write, you would have the other clerk handle the customer. You also assure us that your only goal is to make sure that the clients use their stamps correctly.

Notwithstanding your arguments to the contrary, we adhere to the conclusions that we reached in CEO 97-8 and reiterate that a prohibited conflict of interest under the second part of Section 112.313(7)(a) would be created were a Public Assistance Specialist to be employed as a cashier at a convenience store or supermarket which accepts food stamps. Initially, we note that the duties of a Public Assistance Specialist relevant to our consideration of your question do not differ significantly from the duties of a Senior Public Assistance Specialist discussed in CEO 97-8. Therefore, we find that your outside employment creates a continuing or frequently recurring conflict between your private interests, that is, your employment with the convenience store and, specifically, your duties as a cashier, and the performance of your public duties, as a Public Assistance Specialist, or an impediment to the full and faithful discharge of your public duties. For example, if a public assistance client were to attempt to use his or her food stamps to make ineligible purchases at the store, a prohibited conflict of interest would exist, because you, as the cashier, would be faced with a situation which "tempts dishonor," that is, you would be faced with a situation of either permitting the public assistance client to make the purchase for the benefit of the store, or to refer the client, as a case of suspected fraud, to appropriate authorities for investigation.

In holding as we do, we do not question your personal integrity or mean to imply that you could not or would not withstand temptation in order to separate your public and private roles. However, the question we must answer is not whether a particular individual is capable of performing his or her public duties without regard for his or her private employment, but whether that employment is of such a nature as to tempt you to disregard your public responsibilities. See CEO 85-23. We previously have advised that Section 112.313(7)(a) does not require proof that a public employee has acted impartially or otherwise acted corruptly, but that the statute is entirely preventative in nature. See also CEO 81-76, in which we stated that the statute is directed at potential conflicts of interest and therefore is directed toward what might happen in a given situation rather than with what actually happens.

However, because you have no duty in your public capacity to refer public assistance clients to the convenience store that employs you or to any other store where they can use their food stamps, we find that no conflict of interest would exist were you to remain employed by the convenience store if you performed duties other than acting as a cashier or supervising or managing any of the other cashiers.[2]

 

QUESTION II:

 

Is your part-time employment with the convenience store, which preceded your employment with the Department of Health and Rehabilitative Services and the Commission's issuance of CEO 97-8, "grand fathered-in"?

 

Your question is answered in the negative.

 

You write that CEO 97-8 was adopted by us on March 6, 1997. However, you first began working at the convenience store in October 1993 and then began your training with the Department of Health and Rehabilitative Services (forerunner of DCF) on March 5, 1994. You believe that since you were working for the convenience store before CEO 97-8 was issued and before you began your employment with the Department of Health and Rehabilitative Services, your employment with the convenience store should be "grand fathered in."

In previous opinions, we have applied Section 112.316, Florida Statutes, to imply a "grandfather clause" which would exempt from the prohibitions of Section 112.313(7) business transactions occurring prior to the time that a public official took office or a public employee began his or her public employment. See CEO 83-7, CEO 86-26, CEO 94-44, and CEO 96-31. Section 112.316 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. However, we have applied this provision in the context of a possible violation of the first part of Section 112.313(7)(a), not the second part which is at issue here.

Accordingly, because the convenience store is neither doing business with nor regulated by your agency, District 12, we find that your employment with the convenience store is not "grand fathered-in" so as to exempt your employment from the prohibitions of the second part of Section 112.313(7)(a).

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 17, 1997 and RENDERED this 22nd day of July, 1997.

 

 

__________________________

Kathy Chinoy

Chair



[1]Your reference to "temptation to dishonor" relates to our citation to Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982) in which the Court states that Section 112.313(7)(a), Florida Statutes, 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."

[2] See CEO 88-10 (Section 112.313(7)(a), Florida Statutes, would not be violated were a city police chief to teach a defensive driving course, because neither he nor the other police officers in his department are in a position to refer individuals to a particular class); and CEO 93-5 (Section 112.313(7)(a) would not be violated because a fire chief would not have the ability or financial incentive to refer city employees to his course, as his compensation from the college would not be based upon the number of attendees in his class and he would not have any involvement in soliciting or selecting students for either the college's fire sciences department or any other department of the school).