CEO 86-77 -- October 29, 1986

CONFLICT OF INTEREST

DEPARTMENT OF LABOR VOCATIONAL REHABILITATION COUNSELOR WORKING AS A MENTAL HEALTH TECHNICIAN FOR A NONPROFIT CORPORATION

To: Mr. Gordon Bradford, Vocational Rehabilitation Supervisor, State of Florida Department of Labor, Tallahassee

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a Department of Labor vocational rehabilitation counselor to be employed as a mental health technician at a residential facility for adults with mental health disabilities operated by a nonprofit corporation. The corporation is not regulated by, or doing business with, the Division of Vocational Rehabilitation. Additionally, the employee's outside work would neither present her with a continuing or frequently recurring conflict of interest, nor impede the full and faithful discharge of her public duties.

QUESTION:

Would a prohibited conflict of interest be created were a Department of Labor vocational rehabilitation counselor to be employed as a mental health technician at a residential facility for adults with mental health disabilities operated by a nonprofit corporation?

Your question is answered in the negative.

In your letter of inquiry, you advise that Ms. Sue Cary was employed as a vocational rehabilitation counselor within District II of the Department of Health and Rehabilitative Services. The vocational rehabilitation responsibilities of that Department subsequently were transferred to the Department of Labor and Employment Security, thereby making Ms. Cary an employee of the latter Department. See Chapter 86-220, Laws of Florida. Her responsibilities involve providing evaluation, guidance, and placement of citizens disabled by mental health handicaps.

You question whether a prohibited conflict of interest would be created were Ms. Cary to assume an "on-call" position as a mental health technician during her off-duty hours for her former employer, a residential facility for adults with mental health disabilities operated by a nonprofit community mental health corporation. Her duties there would include the monitoring of clients, intervening in crisis situations, and attending monthly staff meetings.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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).]

This provision prohibits a public employee from being employed by a business entity which is regulated by, or doing business with, his agency.

We are of the opinion that the subject employee's "agency" for purposes of the Code of Ethics is the Division of Vocational Rehabilitation which has been created within the Department of Labor and Employment Security. The term "agency" is defined in Section 112.312(2), Florida Statutes as

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. [E.S.]

The nonprofit community mental health corporation is not subject to the regulation of, or doing business with, the Division of Vocational Rehabilitation. In previous opinions we generally have advised that a business entity is doing business with an agency where the parties have entered into a lease, contract, or other type of legal arrangement under which one party would have a cause of action against another in the event of a default or breach. See CEO 77-36, CEO 80-87, and CEO 82-50. You advise that currently there is no such relationship between the corporation and the Division and no expectation of such a relationship in the future. In a telephone conversation with our staff, you further advised that while there are contractual agreements between District II of D.H.R.S. and the corporation, the employee was not in a position while at D.H.R.S. to influence these decisions, as they were made at the administrative level.

Furthermore, we see no reason to believe that the employee's outside work as a mental health technician would present her with a continuing or frequently recurring conflict of interest or would impede the full and faithful discharge of her public duties as a vocational rehabilitation counselor. There is no conflict in the hours to be worked by the employee or in the nature of her duties.

Accordingly, we find that no prohibited conflict of interest would be created were the subject vocational rehabilitation counselor with the Department of Labor's Division of Vocational Rehabilitation to accept part-time employment as a mental health technician with a residential facility for adults with mental health disabilities operated by a nonprofit community health corporation.