CEO 00-16 -- August 29, 2000
CONFLICT OF INTEREST; POSTEMPLOYMENT RESTRICTION
DEPARTMENT OF CHILDREN AND FAMILIES SENIOR ATTORNEY EMPLOYED WITH RURAL LEGAL SERVICES
To: Name withheld at person's request (Arcadia)
No prohibited conflict of interest exists under Section 112.313(7)(a), Florida Statutes, where a Senior Attorney of the Department of Children and Families is employed with a rural legal services organization. Under the first part of the statute, the organization (a "business entity") is not subject to the regulation of or doing business with the Department, and the clients of the organization are not "business entities." The second part of the statute is not violated because the Senior Attorney's position, while administratively housed within the Department, is responsible for the interests of clients (residents/patients of a Department hospital) adverse to the Department and not for the interests of the Department.
However, the postemployment restriction of section 112.313(9)(a)4., Florida Statutes, prohibits the Senior Attorney's personal representation of legal services clients before the hospital/District 8 of the Department within two years of his leaving public employment. CEO's 82-88, 92-8, 93-14, and 94-5 are referenced.
Does a prohibited conflict of interest exist where a senior attorney employed at a State mental hospital to represent residents/patients adverse to the hospital, pursuant to settlement of a Federal court patients' rights lawsuit, also is employed with a rural legal services organization that has some clients adverse to the hospital?
Under the particular circumstances of your inquiry, your question is answered in the negative.
By your letter of inquiry and other materials provided to our staff, we are advised that you are (and have been since 1992) employed as a Senior Attorney of the Department of Children and Families ("Department" or "DCF"), at a State hospital treating mentally ill persons and serving eighteen counties in the southwestern part of Florida. Further, you advise that you are so employed pursuant to a joint stipulation/consent decree of a Federal court requiring that the residents of the hospital have the services of an attorney to represent them in civil matters and to challenge civil rights violations and treatment conditions at the hospital; that the stipulation authorizes you to bring legal action against the hospital or Department on behalf of the hospital residents (your clients); and that your duties in this position are to protect and advance the interests of your clients and are not to protect the interests of the Department/hospital.
Additionally, you advise, in March 2000, the Department announced that the hospital would be closed by April 2002 and committed to assisting the persons employed at the hospital with transition to other employment. Further, you advise that as a result of the anticipated hospital closure you applied for and received employment as a managing attorney in an office of Florida Rural Legal Services ("FRLS"), a private, nonprofit corporation that represents the poor in civil legal matters and which is funded primarily by the Federal government and the Florida Bar; that you offered to continue employment (part-time) with the hospital in order to meet your ethical obligations as an attorney to your hospital-resident clients during the phase-down of the hospital; that the hospital's administrator agreed with your proposal and you began your part-time hospital/FRLS concurrent employment on July 24, 2000; that the Department's Office of General Counsel believes there may be a conflict of interest in your working for FRLS because FRLS sometimes represents clients who have disputes with the Department and sometimes files legal actions against the Department; and that during your short time at FRLS you primarily have attended to orientation functions and have not represented any clients, due to your desire for ethical clarification of your situation.
In view of the foregoing, you inquire as to whether your outside (FRLS) employment creates a prohibited conflict under Section 112.313(7)(a), Florida Statutes, arguing that it does not, in that you are employed by the hospital solely as an advocate for hospital residents, in that your role as an attorney at FRLS does not create any additional conflict which does not already exist by virtue of the peculiar nature of your public position of employment, and in that your FRLS employment does not conflict with your responsibility to your clients at the hospital.
Section 112.313(7)(a) 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 or she 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 or her private interests and the performance of his or her public duties, or that would impede the full and faithful discharge of his or her public duties.
The first part of the statute prohibits a public employee's holding employment or a contractual relationship with any business entity which is subject to the regulation of, or which is doing business with, his public agency.
Under the first part of the statute, it is apparent that you are a public employee (by virtue of your Senior Attorney position at the hospital/Department), that you hold employment with FRLS, and that you hold a contractual relationship with each client of FRLS. However, we see no indication that FRLS (a "business entity" by virtue of being a corporation doing business in Florida) is regulated by or is doing business with the Department. Further, the clients of FRLS with whom you would hold contractual relationships (poor people represented in civil matters) are natural persons, not "business entities doing business in this State." Therefore, we find that the first part of the statute is inapplicable to your situation.
The second part of the statute prohibits a public employee's holding employment or a contractual relationship, regardless of whether it is with a business entity or an individual and regardless of whether the business entity is regulated by or doing business with his public agency, if the employment/contractual relationship creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties or impedes the full and faithful discharge of his public duties. The second part of the statute, like the first, is preventive in nature; it is not predicated on consummated misconduct of a public officer or employee, but is designed to prevent situations which "tempt dishonor." See Zerweck v. State Comm'n on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982). Further, the gravamen of our interpretation of the statute has always been that in order for a prohibited conflict to be present a public employee (i.e., yourself) must possess duties to his public agency employer that he would be tempted to compromise because of his outside employment/contractual relationship (i.e., your FRLS endeavor). However, in your situation, it is obvious that your duties are to your clients (hospital residents) and are not to the Department/hospital, that you merely are "administratively housed" at the Department/hospital by the actions of a Federal court, and thus that you would not be tempted to compromise your nonexistent duties to the Department/hospital, regardless of whether you have outside employment with FRLS.
Accordingly, under the circumstances described, we find that no prohibited conflict of interest exist under Section 112.313(7)(a), Florida Statutes, regarding your employment with FRLS while employed as a Senior Attorney at the hospital.
Does the postemployment restriction of Section 112.313(9)(a)4., Florida Statutes, prohibit your personally representing FRLS clients before the Department/hospital for a period of two years after vacation of your Senior Attorney position?
This question is answered in the affirmative.
Section 112.313(9)(a)4., provides:
No agency employee shall personally represent another person or entity for compensation before the agency with which he or she was employed for a period of 2 years following vacation of position, unless employed by another agency of state government.
For purposes of the restriction, "employee" is defined in Section 112.313(9)(a)2.a.(I), Florida Statutes, to include
[a]ny person . . . holding a position in the . . . Selected Exempt Service . . . .
We find that the restriction prohibits your representation of clients, including FRLS clients, before the hospital and any other component of District 8 of the Department for a period of two years following vacation of your Senior Attorney position. As a Senior Attorney, you are a covered "employee" for purposes of the restriction (as a member of the Selected Exempt Service), and the hospital/District 8 is your "agency." However, we note that the restriction only applies to your personal "representation" in matters in which your former public agency is the final decisionmaker (matters "before your agency"), that it does not apply to matters involving your former public agency in which other governmental entities make the final decision (e.g., a circuit court case in which a FRLS client is suing the hospital), and that it does not restrict the activities of other attorneys at FRLS who are not former "employees." See our lengthy discussion in CEO 93-14 regarding the meaning of "representation," whether a matter is "before one's former agency," and the prohibition's lack of extension to the other members of one's postemployment law firm.
Our answer to this question is consistent with our response to Question 1 because the purpose of the postemployment restriction is broader or different from that of the prohibitions concerning employment or contractual relationships under Section 112.313(7)(a). Section 112.313(7)(a) is limited to situations in which an active public employee has duties to his public employer that he would be tempted to compromise in favor of his private clients (a reality not present in your situation which is designed to be patient-partisan rather than Department/hospital-loyal). In contrast, the postemployment restriction is designed to prohibit one's exploitation of special knowledge or personal contacts gained during public employment for the benefit of his clients after he leaves public employment (see CEO 93-14); and we believe this to be the purpose of the restriction, even in situations such as yours where the special knowledge or personal contacts with agency (i.e., Department/hospital) personnel were gained in an atmosphere devoid of duties on your part to the agency.
Accordingly, we find that you are subject to the two-year restriction on personally representing clients in matters before the hospital/District 8.
ORDERED by the State of Florida Commission on Ethics meeting in public session on August 24, 2000 and RENDERED this 29th day of August.
Howard Marks, Chair
It is our view that every member of a law firm holds a contractual relationship with every client of the firm, regardless of whether the particular member works on the case of a particular client. See, for example, CEO 94-5.
Section 112.312(5) defines "business entity" to mean
any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state.
Compare your situation with that in CEO 92-8, our opinion in which we found that the second part of the statute would be violated were an administrator of the hospital to be hired by a court-appointed monitor of the hospital as a consultant for a case involving another state's mental health system, reasoning that the administrator's role under the Federal court decree (to which he was a signatory in behalf of the hospital), in which he had responsibility to respond on behalf of the hospital/the Department's predecessor (DHRS) to reports of the monitor critical of DHRS's efforts at implementation of the decree, would create a tension with his private interests in pleasing his private employer (the same monitor).
We find that you are not exempted from the prohibition by Section 112.313(9)(a)6., Florida Statutes, inasmuch as you were employed in November 1992 and inasmuch as the exemption's applicable "grandfather" date is July 1, 1989.