CEO 81-54 -- September 17, 1981

CONFLICT OF INTEREST

EMPLOYEE OF DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES CONSULTING WITH PUBLIC AND PRIVATE ENTITIES

To: Mr. Joseph A. Infantino, D.H.R.S., Crawfordville

SUMMARY:

Section 112.313(8), Florida Statutes, would prohibit a Program Analyst in the Manpower Development Section of the Mental Health Program Office, Department of Health and Rehabilitative Services, from forming a consulting corporation to provide a training program developed by him for the Department to county psychiatric facilities not under contract with the Department, to private psychiatric hospitals not under contract with the Department, or to juvenile detention facilities operated by the Department. That Section of the Code of Ethics prohibits the disclosure or use of information not available to members of the general public gained by reason of one's official position for one's personal gain or benefit or for the personal gain or benefit of any other person or business entity. As the program proposed to be offered by the employee in a consulting capacity was developed by him for the Department as part of his employment by the Department, and as some of the information included in the program has not been made available to members of the general public, this prohibition would apply and would prohibit the employee from disclosing the information contained in the program to a business entity with which he would not be involved, for the benefit of that business.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit you, a Program Analyst in the Manpower Development Section of the Mental Health Program Office, Department of Health and Rehabilitative Services, from forming a consulting corporation to provide a training program developed by you for the Department to county psychiatric receiving facilities not under contract with the Department, to private psychiatric hospitals not under contract with the Department, or to juvenile detention facilities operated by the Department?

Your question is answered in the affirmative.

In your letter of inquiry you advise that in 1976, while you were employed by the Department of Health and Rehabilitative Services (D.H.R.S.) at the North Florida Evaluation and Treatment Center as Training Director, you developed a training methodology entitled Crisis Intervention and Control. The program was intended to provide a systematic approach to the therapeutic management of an aggressive client, based in part on self-defense techniques you had learned while in private martial art training. Subsequently, you were promoted to Training Specialist for the Mental Health Program of the Department, and in 1978 the program you had developed was adopted and uniformly presented to the State hospital network. Currently, the program is a mandatory in-service training program for direct service personnel. In 1980, you expanded the program into a train-the- trainer model, by which each State hospital became able to provide the training program through its own group of trainers.

Currently, you advise, you are employed as Program Analyst in the Manpower Development Section of the Mental Health Program Office, in which capacity you monitor the program you have developed for quality assurance, cost effectiveness, and standards compliance.

You also advise that you would like to provide on a consultant basis the Crisis Intervention and Control Program to county psychiatric receiving facilities not under contract with D.H.R.S., private psychiatric hospitals not contractually affiliated with D.H.R.S., and juvenile detention facilities operated by D.H.R.S. but not affiliated with your Program office or job function. In order to do so, you advise, you would like to form a corporation with other individuals who are not employed with the State.

The Code of Ethics for Public Officers and Employees, in Section 112.313(3), Florida Statutes, prohibits you from acting as an officer, director, or owner of more than five percent of a corporation which is selling services to your "agency." In addition, Section 112.313(7)(a), Florida Statutes, would prohibit you from having any employment or contractual relationship with a business entity or an agency which is either doing business with, or subject to the regulation of, your "agency." The term "agency" is defined for purposes of the Code of Ethics to mean

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 Statutes.]

As D.H.R.S. is not structured on the department-division-bureau model, but rather is structured by units called "offices," in previous advisory opinions we have determined an employee's "agency" by analogizing the structure of the Department to the department- division-bureau model. See CEOs 78-50, 80-1, and 80-76, copies of which are enclosed. In those opinions, we found that offices directly supervised by an assistant secretary of D.H.R.S. are analogous to divisions of other State departments and that offices directly supervised by those offices are the functional equivalents to bureaus. According to the information you have provided, the Assistant Secretary for Program Planning and Development supervises the Mental Health Program Office, which in turn directly supervises the Mental Health Manpower Development Program, of which the Manpower Development Section is a part. Therefore, we find that the Mental Health Manpower Development Program is your "agency."

It is apparent that the corporation you propose to form will not be selling any services to your agency, the Mental Health Manpower Development Program. Nor does it appear that the Mental Health Manpower Development Program has any regulatory authority over county psychiatric receiving facilities, private psychiatric hospitals, or juvenile detention facilities operated by D.H.R.S. We reach this conclusion based upon materials you have submitted which indicate that the Manpower Development Program was created to provide a manpower planning and analysis capability for the mental health service delivery system in Florida and to create and maintain a health manpower education system development effort to serve the education and training needs of personnel in the mental health service delivery system.

The Code of Ethics also provides:

DISCLOSURE OR USE OF CERTAIN INFORMATION. -- No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), Florida Statutes (1979).]

In a previous opinion, CEO 80-21, a copy of which is enclosed, we advised that this provision would prohibit a State employee from offering his services as a consultant relating to dispute resolution alternatives, where he had been employed by the State to direct a project on dispute resolution alternatives. Similarly, here, you intend to offer as a consultant to public and private organizations a program developed for use by D.H.R.S. Although the techniques taught in the program are modifications from existing self-defense styles, in part readily available to the public, it appears that some of the information you would impart as a consultant has not been made available to members of the general public. As the statute prohibits the use of such information for your personal gain or benefit or for the personal gain or benefit of any other person or business entity, we are of the opinion that you would be prohibited also from disclosing the information contained in the program to a business entity with which you would not be involved, for the benefit of that business.

Accordingly, we find that a prohibited conflict of interest would be created were you to provide the Crisis Intervention and Control methodology as a private consultant or were you to disclose that methodology to a business entity for its use in providing consultant services.