CEO 91-65 -- December 6, 1991

CONFLICT OF INTEREST

SCHOOL PSYCHOLOGISTS ENGAGING IN

PRIVATE PRACTICE

To: James H. Siesky, Attorney, Collier County Public Schools (Naples)

SUMMARY:

A prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, when a school psychologist engages in a private practice in which he gives counseling, therapy, consultation, and psychoeducational evaluations to students of the school district which employs him and to their parents. The Commission has advised in prior opinions that qualified D.H.R.S. and Department of Corrections personnel were not prohibited from engaging in private psychiatric or psychological practices where the personnel did not accept as clients or patients those persons eligible for services through these Departments, and referrals were not accepted from Department personnel. The same would apply to school psychologists; however, here the interests of the school psychologists and the nature of their private responsibilities coincide with their public duties and responsibilities to "tempt dishonor," thereby resulting in their possible disregard of their public duties and the public interest.

QUESTION:

Would a prohibited conflict of interest exist were a school psychologist to engage in private practice in which he gives counseling, therapy, consultation, and psychoeducational evaluations to students of the school district which employs him and to their parents?

Your question is answered in the affirmative.

Through your letter of inquiry, accompanying memoranda, and Collier County School Board policy statements, you advise that three psychologists employed by the Collier County Public School Board have private practices in which they give counseling, therapy, consultation, and psychoeducational evaluations to children and adults. You advise that the children and adults often have relationships to the Collier County Public Schools as students and parents.

You also advise that the School Board adopted the following Policy GCQAC in 1979 specifically with psychologists in mind:

Consistent with Board Policy relating to outside employment, and for the purpose of avoiding conflict of interest between the roles of professional employees of the District and any private professional services such employees might render to the public, no employee of the District School Board of Collier County shall provide for hire private consulting, educational testing or psychological assessments in regard to any pupil who is enrolled or is planning to enroll in the Collier County Public Schools unless the parent or legal guardian of the child agrees that the fruits of such a private evaluation will not be used in any due process proceeding regarding the appropriate placement of the child. In order to meet this requirement the parent will be required to complete and sign the attached request for services. (Exhibit I)

This policy shall not prohibit teachers from tutoring pupils of the district privately, so long as the pupil tutored is not assigned to the teacher's class or classes during the duration of private tutoring. Tutoring shall not take place on Collier County School Board property.

Exhibit I (Request for Services), which was provided for our review, is a written agreement that the parent of a Collier County School student is requested to sign acknowledging the parent's understanding of his right to an independent educational evaluation at public expense if he disagrees with the evaluation done by the Collier County Public Schools.

You question whether a school psychologist who operates within the framework of this School Board policy violates any of the provisions of the Code of Ethics for Public Officers and Employees. Of particular concern to some members of the School Board's administration are possible conflicts that could arise during an administrative due process hearing held regarding a dispute between school system personnel and parents of a handicapped child regarding the identification, evaluation, placement, or services to be provided to the child.

The Federal Education for all Handicapped Children Act (EAHCA), 20 U.S.C. s.1400, et. seq., and the regulations promulgated thereunder, 34 C.F.R. s.300.1, et. seq., provide federal money to assist the state and local school districts in providing full educational opportunities to all handicapped children. For a state to receive federal assistance, the state must demonstrate that it "has in effect a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. s.1412(1). Hendry County School Board v. Kujawski, 498 So.2d 566, 567 (Fla. 2d DCA 1986). The term "free appropriate public education" is defined at 20 U.S.C. s.1401(18) to mean:

[S]pecial education and related services that--

(A) have been provided at public expense, under public supervision and direction, and without charge,

(B) meet the standards of the State educational agency,

(D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title. [Emphasis supplied.]

The term "related services" is defined at 20 U.S.C. s.1401(17) to mean:

[T]ransportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation and social work services, and medical and counseling services, including rehabilitation counseling, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. [Emphasis supplied.]

An "individualized education program" (IEP) is used to provide the free appropriate public education to the child. It is a written statement developed in a meeting between a qualified representative of the local educational agency, the child's teacher, parent, and, whenever appropriate, the child. Among other things, the plan must include a statement of the child's present levels of educational performance, the specific educational services that will be provided, and appropriate objective criteria, evaluation procedures, and schedules for determining whether instructional objectives are being achieved. See 20 U.S.C. s.1401(19). Due to the extensive procedural requirements imposed on the state under the EAHCA, if a parent disagrees with the IEP or evaluation, he is entitled to an impartial due process hearing. See 20 U.S.C. s.1415.

In a due process hearing, the parent is entitled to be represented by counsel or by persons with special knowledge or training with respect to the problems of handicapped children, to present evidence and confront, cross-examine, and compel the attendance of witnesses. The parent is also entitled to an independent educational evaluation of the child. An "independent educational evaluation" means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child. [Emphasis supplied.] See 34 C.F.R. s.300.503(a)(3)(i).

Florida law mirrors the EAHCA to a great extent. For example, Section 230.23(4)(m)1., Florida Statutes, requires the local school board to provide necessary professional services for diagnosis and evaluation of exceptional students and Section 230.23(4)(m)5., Florida Statutes, requires that a due process hearing be afforded the parent upon his request pertaining to the identification, evaluation, and placement, or lack thereof, of the child. Thus, under Florida law, as under federal law, psychoeducational evaluations, psychological evaluations, counseling, and other psychological services would have to be provided by the Collier County Schools at no cost to the parents of the handicapped child for diagnostic or evaluation purposes, or as may be required to assist the child in benefiting from special education. The parent also has the right under 20 U.S.C. s. 1415(d)(2) to present evidence at a due process hearing; therefore, the parent is entitled to present conflicting evaluation results from different psychologists or to present a privately obtained psychologist's evaluation when none has been completed at public expense, or considered by the School District, and the parent believes its consideration is essential to proper IEP development and placement of the child. The parent also has the right to compel the attendance of witnesses and to cross-examine witnesses, even if the witness is a psychologist employed by the School District.

In prior opinions, we generally have advised that qualified D.H.R.S. and Department of Corrections personnel are not prohibited from engaging in private psychiatric or psychological practices. See CEO 88-10 and CEO 87-68. In contrast, here we are concerned that the second clause of the following Code of Ethics provision may be violated:

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.]

The first part of this provision prohibits a public employee from having an employment or contractual relationship with a business entity which is regulated by or doing business with his agency. In this case, the psychologists are neither regulated by the Collier County School Board, their agency, nor are they doing business with the School Board. The second portion of this provision, however, prohibits a public employee from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that will impede the full and faithful discharge of his public duties.

For purposes of the Code of Ethics, a "conflict of interest," is defined in Section 112.312(8), Florida Statutes, to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." Based upon this definition, the court in Zerwick v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982), held that Section 112.313(7)(a) "establishes an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'"

Our concern is whether the interests of the school psychologists and the nature of their private responsibilities could coincide with their public duties to "tempt dishonor," rather than with whether, through self-imposed limitations, they could avoid succumbing to the temptation of using either public resources or position for private benefit and thereby disregarding their public duties and the public interest. See CEO 91-34. We find that these school psychologists could be charging parents of handicapped children for psychoeducational evaluations and other psychological services that the School District may be obligated to provide to them at no cost. Thus, the temptation could exist either not to recommend the services on the child's IEP, thereby necessitating a due process hearing, or the parents paying for psychologist's services. We also find that there is a potential temptation to avoid recommending a psychoeducational evaluation at public expense, thereby causing parents to seek and pay for one privately. Another concern of ours is the potential placement of the psychologists, as a result of their private practices and regardless of any signed agreement to the contrary, in a position to testify against the School Board. See CEO 85-34.

In previous opinions CEO 84-56, CEO 86-61, and CEO 87-68, we held that a public employee who wished to involve himself in private practice needed to comply with a number of restrictions if he were to avoid a situation which would 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. We believe these same restriction are applicable in this situation.

Accordingly, we find that as long as the school psychologists engage in their private practices during off-duty hours, their services are not provided to Collier County School students or their parents if the parents are eligible for the services through the School Board, and they do not accept referrals from School Board employees, no prohibited conflict would exist. Thus, the psychologists' compliance with School Board Policy GCQAC would not by itself avoid their violating the Code of Ethics.

Please be advised that the Code of Ethics also contains the following prohibition:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes.]

Any attempt by the psychologists to use their official positions to solicit business for themselves could constitute a violation of this provision. We suggest that the School Board notify any School Board employees who are in positions to receive inquiries concerning services of the type provided by these psychologists that referrals be made to other psychologists in order to prevent the appearance that they have used their position for private benefit.