CONFLICT OF INTEREST
COUNTY HEALTH DEPARTMENT EMPLOYEE PRIVATELY COMPETING
WITH COUNTY TO PROVIDE WATER SAMPLING SERVICES
To: Name Withheld At Person's Request (Spring Hill)
A prohibited conflict of interest is created under the second part of Section 112.313(7)(a), Florida Statutes, where a sanitation and safety specialist with a county health department privately competes with the health department to provide water sampling services. Although the employee is not in a position to solicit customers from entities she regulates as a health department employee, competing with her agency to provide the same service creates a continuing or frequently recurring conflict between her interests and those of the health department.
Is a prohibited conflict of interest created where a sanitation and safety specialist with a county health department privately provides water sampling services for private water systems and where the health department also provides water sampling services?
Your question is answered in the affirmative.
From your letter of inquiry, we are advised that you are the immediate supervisor of the individual on whose behalf this opinion is sought, . . . . . ., a Sanitation and Safety Specialist with the Hernando County Health Department. You advise that the employee's position exclusively involves environmental health duties, and her position description provides substantial detail as to what those duties entail. For example, she apparently has responsibilities relating to bio-medical waste handling and disposal, disease outbreaks, animal bite incidents, foster home inspections, lead blood screening, the medical sharps program, and a weekly communicable disease morbidity report. Her public duties do not include obtaining drinking water samples from private water systems except at the foster homes she inspects.
We are advised that in her private capacity, this individual is Acompeting with the Health Department by collecting drinking water samples for bacteriological and chemical analysis from drinking water systems regulated by the Department of Environmental Protection (DEP). Apparently the Health Department's laboratory also provides water sampling services. The question presented is whether her competition with the Health Department creates a conflict of interest prohibited by the Code of Ethics for Public Officers and Employees.
The applicable standard of conduct is Section 112.313(7)(a), Florida Statutes, which provides:
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 . . .; 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 (1997).]
Section 112.313(7)(a) prohibits a public employee from having an employment or contractual relationship with a business entity or agency which is doing business with or regulated by her agency. It also prohibits the employee from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between her private interests and the performance of her public duties, or which impede the full and faithful discharge of her public duties.
The employee's Aagency for purposes of the Code of Ethics is the Hernando County Health Department. See CEO 90-65. Her supervisors have indicated that the employee's public duties do not require her to inspect or otherwise regulate any of the facilities that she provides private sampling services to, and there is no indication that others within the Department Aregulate these same facilities. No one has suggested that any of these facilities Ado business, in the conventional sense, with the County Health Department, although they apparently do submit their water samples to the Health Department's lab for analyses. Notwithstanding, the first part of Section 112.313(7)(a) does not appear to be applicable to the facts at hand because the employee does not have contractual relationships with business entities doing business with or regulated by the County Health Department.
With regard to the second part of Section 112.313(7)(a), in a number of opinions the Commission has examined whether a conflict is created where a public employee performs services in her private capacity that her agency could also provide. In CEO 79-47, we found a conflict to exist where an administrator with the Department of Commerce sought to consult with the Bahamas Ministry of Tourism to provide analysis and interpretation of Department data for the purpose of preparing a tourism marketing strategy that would promote Florida/Bahamas travel. The Bahamas was seen as a competitor of the state for tourist dollars, and the administrator was in a position to benefit privately from a situation in which the state could participate officially. In CEO 87-71, we concluded that the same provision would prevent an employee of the Department of State, Division of Historical Resources, from entering into a contract for professional services with a business entity if the Bureau could also provide those same services. The Commission opined that when the subject employees accepted their public positions, they accepted the responsibilities of carrying out their public duties; in so doing, they were required to sacrifice those private opportunities which would conflict with their public duties. And in CEO 90-75, we opined that a conflict would be created if library personnel privately performed paid research for patrons where the county library provided similar services but for a fee payable to the county library system. All of these opinions recognized that for a public employee to benefit privately from a situation in which her agency could participate officially suggests the possibility of, or potentiality for, an employee diverting agency-related business to herself for private gain. These concerns epitomize the prohibitions of the second part of Section 112.313(7)(a).
Here, although the potential for the employee to divert business to herself is apparently minimal since she collects samples from DEP-regulated water systems and her public duties do not require her to inspect or regulate these types of facilities, we are of the view that her competition with the Health Department's sampling services creates a continuing or frequently recurring conflict between her private interests and the interests of her employer, the Hernando County Health Department. In this situation, competing with the interests of one's employer violates the second part of Section 112.313(7)(a), Florida Statutes.
Accordingly, a prohibited conflict of interest is created where a Sanitation and Safety Specialist with a County Health Department privately competes with the Health Department to provide water sampling services to private water systems.
ORDERED by the State of Florida Commission on Ethics meeting in public session on December 3, 1998 and RENDERED this 8th day of December, 1998.
Charles A. Stampelos