CEO 83-85 -- October 27, 1983

CONFLICT OF INTEREST

D.H.R.S. EMPLOYEE CONSULTING WITH ORGANIZATION CONTRACTING WITH DEPARTMENT

To: (Name withheld at the person's request.)

SUMMARY:

No prohibited conflict of interest would be created were a program analyst with the Office of Evaluation and Management Review of the Department of Health and Rehabilitative Services to consult with an organization to conduct a recidivism study of a delinquency commitment program which it provides through a contract with the Department. Section 112.3185(2), Florida Statutes, does not apply as the employee played no role in the Department's contracting process. Section 112.313(8), Florida Statutes, would not apply because of the employee's educational background. Although the employee would have a contractual relationship with a business entity which is doing business with the employee's agency, the Department, Section 112.313(7)(a), Florida Statutes, would not be violated because the employee's responsibilities are sufficiently removed from the organization that consultation with the organization would not interfere with the full and faithful discharge of the employee's duties to the Department. Therefore, Section 112.316, Florida Statutes, controls over the prohibition of Section 112.313(7)(a).

QUESTION:

Would a prohibited conflict of interest be created were you, a program analyst with the Office of Evaluation and Management Review of the Department of Health and Rehabilitative Services, to consult with an organization to conduct a recidivism study of a delinquency commitment program which it provides through a contract with the Department?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff you advised that you are employed by the Department of Health and Rehabilitative Services in a time-limited Program Analyst II position in the Office of Evaluation and Management Review. In that position, which has been funded for one year by a federal grant, you are responsible for a research project regarding truants, runaways, and ungovernable children.

In addition, you have advised that you have been asked to provide consulting services to an organization which has contracted with the Department since 1976 to provide a delinquency commitment program. Specifically, you were asked to conduct a recidivism study of all delinquents who were admitted to the program since its inception in order to provide outcome information to the organization's home office to assist the organization in deciding whether to submit proposals to several midwestern states. The Department did a similar study of this program and others two years ago, which was not as detailed as the organization requires. The organization requested the Children, Youth, and Families Program Office of the Department to conduct the study, you advise, but that office declined because of lack of resources and low priority.

The Code of Ethics for Public Officers and Employees provides:

CONTRACTUAL SERVICES. -- No agency employee who participates through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, or auditing or in any other advisory capacity in the procurement of contractual services shall become or be, while an agency employee, the employee of a person contracting with the agency by whom the employee is employed. [Section 112.3185(2), Florida Statutes (Supp. 1982).]

In a telephone conversation with our staff, you advised that the organization's contract to provide the delinquency program was entered into with, and is managed by, District IV of the Department. You also advised that you played absolutely no role in the contracting process. Therefore, we find that this provision of the Code of Ethics would not prohibit you from working for the organization.

In addition, the Code of Ethics 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 (1981).]

This provision prohibits an employee from using information not available to the general public for personal gain or benefit as a private consultant. See CEO 80-21. However, the provision does not prohibit the use of knowledge or expertise acquired by previous educational or work experience. See CEO's 77-40, 77-107, 78-81 and 79-30. In a telephone conversation with our staff, you advised that you have a bachelor's degree in criminology and a master's degree in public administration with an emphasis on research and statistics. Therefore, we find that Section 112.313(8) would not prohibit your proposed consultation.

Finally, the Code of Ethics 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 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. [Section 112.313(7)(a), Florida Statutes (1981).]

This provision prohibits a public employee from having any employment or contractual relationship with a business entity which is doing business with the employee's agency.

We are of the opinion that your "agency" for purposes of the Code of Ethics is the Department of Health and Rehabilitative Services. That term is defined in Section 112.312(2), Florida Statutes, as follows:

"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.

In previous opinions we have found that offices within the Department which are directly supervised by an Assistant Secretary are analogous to divisions of other state departments, and that offices directly supervised by those offices are the functional equivalents of bureaus. See CEO's 80-76, 80-1 and 78-50. In a telephone conversation with our staff, you advised that the Office of Evaluation and Management Review is located within the Office of the Secretary of the Department, rather than under an Assistant Secretary. You also advised that your Office is authorized to review all programs within the Department. For these reasons, we conclude that your "agency" is the Department.

However, the literal language of the prohibitions contained within the Code of Ethics is tempered by the following provision:

CONSTRUCTION -- It is not the intention 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. [Section 112.316, Florida Statutes (1981).]

In our view, your responsibilities with the Department are sufficiently removed from the organization and its contract to provide the delinquency commitment program that we can conclude that your consultation with the organization would not interfere with the full and faithful discharge of your duties to the Department. In particular, we note that you presently are responsible for a research project regarding status offenders, who are dependent youths and are not eligible for delinquency programs such as that operated by the organization. You have advised that next year you will be conducting a research project regarding Florida's three training schools, which will not involve the organization or the program it runs. Further, as we noted earlier, you have no involvement in the process by which the contract is awarded from District IV to the organization. Therefore, it does not appear that your proposed consultation would result in a situation in which regard for the interests of the organization would tend to lead to disregard of your public duties, which is the definition of "conflict of interest" provided in Section 112.312(6), Florida Statutes.

Accordingly, we find that no prohibited conflict of interest would be created were you to consult with the organization to conduct a recidivism study of its delinquency commitment program while serving as a program analyst with the Office of Evaluation and Management Review.