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Informal Opinion - Potential Conflict 04/20/2005 Received — F ':. APR 2 2 2005 �4a ,� i. COLLIER COUNTY �� it@ " " '` EMS Dept. DAVID C. WEIGEL a ' COLLIER COUNTY ATTORNEY 3301 East Tamiami Trail Heidi F.Ashton Naples,FL 34112-4902 Jennifer A.Belpedio Telephone: (239)774-8400 Ellen T.Chadwell Facsimile:(239)774-0225 Jacqueline Hubbard michaelpettit @colliergov.net Jeffrey A.Klatzkow William E.Mountford Thomas C.Palmer Michael W.Pettit Marjorie M.Student Scott R.Teach Patrick G.White Robert N.Zachary April 20, 2005 , VIA FACSIMILE (850) 488-3077 AND EMAIL claypool.philip @leg.state.fl.us Philip C. Claypool, General Counsel State of Florida Commission on Ethics 3600 Maclay Blvd., South, Suite 201 P.O. Drawer 15709 Tallahassee,FL 32317-5709 RE: Request for Informal Opinion Concerning Potential Conflict Under Section 112.313(7)(a), Fla. Stat., for a Member of the Collier County Emergency Medical Services Advisory Council Dear Mr. Claypool: Emergency Medical Services Advisory Council Member Gail Dolan has asked this Office to request an informal opinion as to whether a conflict under Section 112.313(7)(a), Fla. Stat., was created by Collier County's issuance of a Certificate of Public Convenience and Necessity to her employer, Naples Community Hospital. Earlier, our Office spoke with Ethics Commission attorney Chris Anderson regarding this issue. The relevant facts are as follows: • Ms. Dolan is an uncompensated member of the Collier County Emergency Medical Services Advisory Council (EMSAC). The ordinance creating the EMSAC sets forth its purpose and the number of its regular and ex officio members. • EMSAC's purpose is to act as an advisory board to the BCC on all aspects of emergency medical services in the county; to study and analyze all opportunities and problems associated with providing optimum emergency medical services throughout the county; and to further delineate objectives and functions as may be necessary and which shall be included in the bylaws for EMSAC. EMSAC also has the right, responsibility and duty Philip C. Claypool State of Florida Commission on Ethics April 20, 2005 Page 2 to review any complaints received by it concerning the quality of the emergency medical services being rendered by any duly authorized emergency medical services provider within the county, to establish a procedure for reviewing such complaints and to recommend to the BCC the action, if necessary, that would be appropriate to resolve such complaint or complaints. EMSAC bylaws are subject to BCC approval. • Since EMSAC's functions are advisory only, it is therefore an "advisory body" as defined by Section 112.312(1), Fla. Stat. • Although the creating ordinance dictates the number of regular and ex officio members, it states that the actual composition of regular and ex officio members will be further delineated in the EMSAC's bylaws. (Copy of EMSAC ordinance, as amended, attached) • The most recent version of EMSAC's bylaws, approved by BCC resolution in 2002, requires the regular membership to include "One (1) person nominated by Naples Community Hospital, who is in a responsible, administrative position pertaining to the providing of emergency medical services, on behalf of said organization." Ms. Dolan, who is a Vice President of Naples Community Hospital (NCH), serves as this regular (voting) member of EMSAC. (Copy of the EMSAC bylaws attached) • In 2004, Collier County granted NCH a Certificate of Public Convenience and Necessity (Certificate) for the inter-facility transfer of post-hospital patients. Our Code of Laws and Ordinances requires BCC approval in the issuance of a Certificate as well other continuing aspects of the Certificate including renewal, alteration, and revocation. The process for obtaining a Certificate does not require review and recommendation by the EMSAC. Research undertaken by the Office of the County Attorney indicates a significant potential risk of a conflict of interest under Section 112.313(7), Fla. Stat., due to the BCC's ongoing regulation of the Certificate issued to this advisory board member's employer. Accordingly, this Office reviewed Florida Commission on Ethics opinions wherein Section 112.313(7)(b), Fla. Stat., was applied to negate such a conflict when a law or ordinance specifies that an advisory board member must practice in a certain profession or occupation. Our review included the following Florida Commission on Ethics opinions: CEO 80-59, CEO 79-2, CEO 83- 73, CEO 76-42, CEO 76-14, CEO 76-14, CEO 82-9, CEO 84-63, CEO 01-10, CEO 80-79, CEO 95-27, CEO 96-17, and CEO 04-14. Nevertheless, since it is the EMSAC's bylaws that require one of its regular members to hold a responsible, administrative position pertaining to the providing of emergency medical services on behalf of NCH, this Office is unable to determine from the above opinions whether these bylaws, which are simply referenced and required by ordinance and approved by Philip C. Claypool State of Florida Commission on Ethics April 20, 2005 Page 3 resolution, rise to the level of "law or ordinance" such that Ms. Dolan would be afforded the protection of Section 112.313(7)(b). If for any reason this request cannot be handled informally or you should have additional questions, please call me at (239)774-8400. Very y yours, . Pettit ichael W Chief Assistant County Attorney MWP/dn attachments cc: David C. Weigel, County Attorney Virginia Neet,Legal Assistant Jeff Page,Director of Collier County Emergency Medical Services Ms. Gail Dolan (via e-mail) 04-COA-0 1 1 23/205 • i EMERGENCY SERVICES §50-52 ARTICLE I. IN GENERAL Sec. 50-28. Members. The EMSA council shall be composed of 14 Secs. 50-1-50-25. Reserved. regular members, one ex-officio member, and two staff advisors. The composition of the regular membership and the ex-officio members will be ARTICLE II. EMERGENCY MEDICAL further delineated in the bylaws, as will the staff SERVICES ADVISORY COUNCIL* advisors. The EMSA council shall elect a chairman at its Sec. 50-26. Creation. organizational meeting and annually thereafter. (Ord.No.80-80,§3;Ord.No.00-70,§ 1, 11-14-00; There is hereby established an organization Ord. No. 02-39, § 1, 7-30-02) which shall be known as the Collier County Emergency Medical Services Advisory Council. Secs. 50-29-50-50. Reserved. (Ord. No. 80-80, § 1) Sec. 50-27. Purpose. ARTICLE III. MEDICAL TRANSPORTATION SERVICES' (a) Generally.The purpose,objectives and font- Sec. 50-51. Purpose. tions of the emergency medical services advisory council are to act as an advisory board to the This article is adopted pursuant to Chapters board of county commissioners on all aspects of 125 and 401,Florida Statutes.The purpose of this emergency medical services in the county; to article is to provide better protection for the study and analyze all opportunities and problems health, safety and welfare of the residents of associated with providing optimum emergency Collier County, in ambulance and ALS matters, medical services throughout the county; and to by establishing uniform county-wide standards further delineate objectives and functions as may for certification of ambulance or advanced life be necessary and which shall be included in the support or services, or operations by promulgat- bylaws for said EMSA council. The emergency ing complete and clear rules and regulations for medical services council shall also have the right, operation of all ambulance or rescue companies or responsibility and duty to review any complaints services in Collier County. received by it concerning the quality of the timer- (Ord. No 0442, § 1) gency medical services being rendered by any duly authorized emergency medical services pro- Sec. 50-52. Definitions. vider within the county, to establish a procedure The following words,terms and phrases,when for reviewing such complaints and to recommend used in this article, shall have the meanings to the board of county commissioners the action,if ascribed to them in this section,except where the necessary, that would be appropriate to resolve context clearly indicates a different meaning: such complaint or complaints. Said bylaws shall be subject to the b oa rd of county commissioners' Advanced life support(ALS) shall mean proce- approval. dures conducted as defined in applicable Florida Statutes and Florida Administrative Code, Sec- (b) Report required. The EMSA council shall tion 64E. annually prepare a report to the board of county commissioners on its activities and accomplish- tEditor's note—Ord. No. 04-12, § 26, adopted Feb. 24, 2004, repealed dies. 1 and 2 of art. III, §§ 50-51-50-68, ments as well as an evaluation of e mergency 50-76-50-86, in their entirety. Sections 1-25 of said ordi- medical services and needs. nance enacted similar provisions to read as herein set out. (Ord.;No. 80-80, § 2; Ord. No. 81-1, § 1) Cross references—Businesses,ch.22;health and sanita- tion,ch. 66. *Cross references—Boards, commissions and authori- State law reference—Medical transportation services, ties,§2-816 et seq.;health and sanitation,ch.66. F.S.§401.2101 et seq. Supp.No.17 CD50:3 Exhibit A Revised 3/28/02 COLLIER COUNTY EMERGENCY MEDICAL SERVICES ADVISORY COUNCIL BY LAWS ARTICLE I Section 1. The name of this organization shall be the Collier County Emergency • - Medical Services Advisory Council(hereinafter called EMSAC). ARTICLE II PURPOSE Section 1: The purposes, objectives, and functions of EMSAC are: A. To act as an advisory body to the Collier County Board of County Commissioners (hereinafter called the BCC) on all aspects of EMS in Collier County. B. To study and analyze all opportunities and problems associated with providing optimal EMS through Collier County. This shall include the _right and the responsibility to hear and investigate any complaints formally received pertaining to the quality of EMS services being rendered by any duly authorized provided. C. - To encourage optimal performance standards for the provision of EMS. D. To encourage the training and education of both the professional provider and members of the general public in the provision of EMS care. E. To coordinate fal (foster) services that impact in any way with the provision of EMS in Collier County. F. To foster.and_promote the development and utilization of improved methods of EMS. G. To promote area-wide coordination and liaison of EMS with adjacent counties on matters of mutual concern. • H. To establish liaison and planning with the County Emergency Management Department and other agencies as appropriate for the purpose of utilizing EMS resources in an optimal manner in the event of a major disaster involving mass casualties. I. Review complaints or problems brought before EMSAC. A procedure far the receiving,processing, and disposition of complaints shall be adopted. <. J. To evaluate periodically and report to the BCC on the quality of EMS in the County and to recommend corrective actions where deficiencies are thought to exist. Prior to June 1st of each year,EMSAC shall submit an annual report to the BCC on its activities and accomplishments and an evaluation of EMS services and needs. K. To recommend to the BCC the adoption of such resolutions or other measures as may be required to insure the accomplishment of the purposes stated herein. ARTICLE III MEMBERSHIP Section 1.- The regular membership of the Collier County Emergency Medical Services Advisory Council shall consist of eleven(11) fourteen(14) members to be appointed by resolution by the Board of County Commissioners as follows: A. A consumer (resident) nominated by each County Commissioner living in his/her District. (Total 5 residents) B. Two (2) consumer (residents) members at large) living in the County. (To be nominated by the Board of County Commissioners) C. One(1)representative of the City Manager of Naples who is in the profession of Fire Rescue/EMS. D. (One (1) representative of the City of Marco who is in the profession of Fire Rescue/EMS.) E. One(1) person to be nominated by the Collier County Health Department. F. One(1)person nominated by the Collier County Sheriff's Office. G. (One (1) person representative of the Collier,County Fire Chief's Association. H. One(1)person nominated by Naples Community Hospital,who is in a responsible,administrative position pertaining to the providing of emergency medical services, on behalf of said organization. I. (One(1) person nominated by CIeveland Clinic,who is in a responsible, administrative position pertaining to the providing of emergencv medical services,on behalf of said organization.) • 9 Section 2. The following or their designate will serve as ex-officio members to - EMSAC without the right to vote: A. EMS Medical Director B. " President of Collier County Fire Chief Association C. ExecutiveDircctor of CHSI Section 3. The following will serve as staff advisors to EMSAC without the right to vote: A. Emergency Services (Division) Administrator B. EMS Operations Chief (Director of Operations) Section 4. All regular members of EMSAC will serve a three (3)year period with a limit of two consecutive terms. - Section 5. The membership by majority vote shall have the authority to recommend to the BCC the removal of any EMSAC member for failure to attend meetings. (See Article V,Section 5). ARTICLE IV MEETINGS Section 1. The regular meetings of the membership of EMSAC shall be held not less than monthly at such time and place as designated by the Chairman (Chairperson). The Chairman (Chairperson) may call special meetings of EMSAC when such meetings are deemed necessary. Notice of special meetings shall be given to each member of EMSAC as provided in Section 2 below. Pursuant to Florida Statues, all meetings shall be open to the public. This also includes committee meetings. Section 2. Notice of the time,place and purpose of all regular meetings and special meetings of EMSAC shall be mailed to each-member not less than five days before such meetings. Attendance by any members at such meetings shall constitute his waiver of the requirement of written notice. Section 3. Five (5)eight(8)voting members shall constitute a quorum for the transaction of any business at any regular or special meeting of EMSAC. Section 4. All official records of EMSAC,including meeting notices, agendas, minutes and resolutions duly adopted, shall be maintained by the Administrator of Emergency Services. Section 5. At the first regular meeting,the Chairman (Chairperson) will establish the times for regular meetings and will file the results with the BCC and the Clerk of the Board.. • ARTICLE V OFFICERS • Section 1. The members of EMSAC shall elect from the members the following officers at each meeting held in October of each year: A. Chairman A. Chairperson B. Vice Chairman B. Vice Chairperson These officers shall serve as the Executive Committee for EMSAC and be selected from the consumer (resident) membership only. Section 2. The term of office of all officers of EMSAC shall be one year or until their • successors are elected. The terms will begin on the first meeting of October through the end of September the following year. All terms shall remain in accordance with existing Collier County Ordinances. Section 3. Any officer may be re-elected for the same office. Section 4. A vacancy in any office of Chairman or Vice-Chairman may be filled by EMSAC at any regular meeting or special meeting called for that purpose. Section 5. Duties: A. Chairman: (Chairperson: The Chairman (Chairperson) shall have the power, with the advice and consent of EMSAC, to recommend policy actions in the ordinary course of business to the BCC. The Chairman (Chairperson) shall perform the normal duties of the Chief Policy Officer of EMS. He/she shall preside at all meeting of EMSAC and be a member ex- officio of all committees. The Chairmen (Chairperson) shall have further powers and duties as may be assigned by EMSAC. B. Vice-Chairman (Chairperson): In the absence of the Chairman (Chairperson) or his/her inability to act, the Vice Chairman (Chairperson) shall exercise all powers and duties of the Chairman (Chairperson). The Vice Chairman (Chairperson) shall have other duties and powers as may be assigned by.EMSAC. C. Secretary: The Secretary for the EMSAC shall be the Administrator for Director Emergency Services or his or her designee. The Secretary shall cause to be kept all minutes of all meetings of EMSAC. He/she shall be responsible for giving proper notice of all meetings of EMSAC and, in general, shall perform all duties incidental to the office of Secretary. He/she • shall have such further duties and powers as may be assigned to him/her by. the Chairman (Chairperson) of EMSAC. It shall be the responsibility of the Secretary to report to the Executive Committee those EMSAC member who have missed two (2)f unexcused consecutive or three (3) unexcused total EMSAC meetings within one year • Included in his/her report shall be indication of follow-up contact, to establish cause, and recommendation as to the appropriate disposition of said EMSAC member. The Secretary's report shall be submitted to the Executive Committee which, in turn, shall report to the EMSAC membership. Excused absences shall be coordinated with Secretary 24 hours -prior to each meeting in order to meet attendance requirements. ARTICLE VI • COMMITTEES Section 1. The Chairman (Chairperson) is empowered to appoint such permanent or ad hoc sub committee chairs as are deemed necessary for the successful execution of the EMSAC program. All committee activities must be reported at a regular EMSAC meeting. ARTICLE VII AMENDMENTS Section 1. These By-laws may be amended by the Board of County Commissioners on its own initiative, or by approving proposed amendments by the EMSAC. A proposed amendment must be passed by a two-thirds vote of the EMSAC membership present and voting at any regular, special or annual meeting after notice of such proposals for amendment has been given to all members as provided in these By-Iaws. Section 2. Notice of any proposed amendment shall be submitted in writing-to all members of EMSAC not less than thirty (30) days prior to the meeting at which such amendments are to be considered. • ARTICLE VIII RULES OF PROCEDURE Section 1. All meetings of EMSAC and any committees shall be conducted and governed by Parliamentary Procedure and usage as contained and set forth in Robert's Rules of Order—Revised Edition unless otherwise provided for in these By-laws or except where modification of such rules is required because of the nature of the work to be accomplished by EMSAC. Section 2. The Can (Chairperson) of EMSAC and the Chairman (Chairperson) of each committee may appoint,if they so desire, an individual to be designated as Parliamentarian to assist them in the proper conduct of the business affairs of this • organization. • • 9