CEO 86-30 -- April 3, 1986

CONFLICT OF INTEREST

D.H.R.S. PSYCHOLOGIST AT STATE HOSPITAL SEEKING EMPLOYMENT AS A PRIVATE PSYCHOLOGIST AND EVALUATING D.H.R.S. CLIENTS UNRELATED TO STATE HOSPITAL

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

SUMMARY:

No prohibited conflict of interest would be created were a D.H.R.S. psychologist at the South Florida State Hospital to engage in private practice as a psychologist and, as part of that practice, to evaluate D.H.R.S. clients not affiliated with the Hospital. In this case, the psychologist is not in a position to influence referrals of D.H.R.S. clients and she would not accept any clients who are affiliated with the Hospital.

QUESTION:

Would a prohibited conflict of interest be created were a Department of Health and Rehabilitative Services psychologist at the South Florida State Hospital to engage in private practice as a psychologist and as part of that practice to evaluate D.H.R.S. clients not affiliated with the State Hospital?

Your question is answered in the negative.

In your letter of inquiry you advise that .... is a psychologist employed by the Department of Health and Rehabilitative Services (D.H.R.S.) at the South Florida State Hospital in the Adolescent Day Treatment Program. You also advise that she seeks self-employment as a psychologist in private practice in her off-duty hours and would like to evaluate D.H.R.S. clients not affiliated with the South Florida State Hospital. You question whether this outside employment would create a prohibited conflict of interest.

In a telephone conversation with our staff, the psychologist advised that presently she counsels Broward County school children in the Adolescent Day Treatment Program at the Hospital. As part of a private practice, she would like to provide psychological evaluations and treatment for D.H.R.S. vocational rehabilitation and child abuse clients. These services would not require contracting with D.H.R.S., but would require being placed on a list of approved providers for referrals from agency personnel in the appropriate programs. Fees would be paid by D.H.R.S. directly to her for each patient. The psychologist advised that she has no connection with the vocational rehabilitation or child abuse programs and would play no role in the referral process. She also advised that she would not evaluate or treat privately any person who is or has been a patient at the Hospital.

In previous opinions we have advised generally that the Code of Ethics for Public Officers does not prohibit qualified personnel of D.H.R.S. from engaging in a private psychiatric or psychological practice. See CEO 80-32 and CEO 85-8. Here, however, the subject psychologist proposes to engage in work for which she will be compensated by D.H.R.S.

The Code of Ethics provides in relevant part:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1985).]

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 (1985).]

Section 112.313(3) prohibits a public employee from acting in a private capacity to sell any services to her agency. Section 112.313(7) prohibits a public employee from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of her public duties.

Conversely, the following provision of the Code of Ethics 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:

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. [Section 112.316, Florida Statutes (1985).]

In our view, the proposed activities of the psychologist would not interfere with the full and faithful discharge of her public duties. She is not in a position to influence referrals of vocational rehabilitation or child abuse clients, she would work during her off-duty hours, and she would not accept any clients who are affiliated with the Hospital.

Accordingly, we find that no prohibited conflict of interest would be created were the subject psychologist at the South Florida State Hospital to seek employment as a private psychologist and to evaluate D.H.R.S. clients not affiliated with the Hospital.