CEO 03-3 – April 25, 2003
CONFLICT OF INTEREST; VOTING CONFLICT
STATE SENATOR HAVING RELATIONSHIP WITH LAW FIRM OTHER ATTORNEYS OF WHICH APPEAR BEFORE LEGISLATURE AND SENATOR VOTING ON FIRM-RELATED MATTERS
To: Name withheld at person's request
Notwithstanding that a conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a State Senator to personally represent a client before the Legislature, a prohibited conflict would not be created were another attorney of a law firm with which a State Senator has an "of counsel" relationship to represent a client before the Legislature, provided certain conditions are adhered to. In addition, attorneys of the firm other than the Senator would not be prohibited from representing clients before State agencies; and the Senator would not be prohibited from representing clients before courts and local government boards. Further, the Senator is not required by Section 112.3143, Florida Statutes, to abstain from voting on any measure affecting himself, the firm, or the firm’s clients; but he may have to disclose his relationships via the filing of a memorandum.
Would a conflict of interest be created under Section 112.313(7), Florida Statutes, were you, a State Senator, to have an "of counsel" relationship with a law firm, members of which represent clients before the Legislature?
Your question is answered in the negative, subject to the conditions noted herein.
By your letter of inquiry, we are advised that you are a member of the Florida Senate and an attorney; that you intend to practice law with a State-wide law firm, including general litigation before various courts and municipal boards in the State; but that your practice will not include your appearing before the Legislature as a private attorney. In addition, you advise that some members of the firm represent clients on legislative and regulatory matters before the Legislature; that the employment contract between yourself and the firm will prohibit a member of the firm from lobbying you in behalf of any client of the firm; and that the contract will prohibit the firm from identifying you as a Senator on firm documents.
Section 112.313(7)(a), Florida Statutes, 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.
Initially, we note that you focus in part on Section 112.313(7)(a)2, Florida Statutes, and inquire as to whether it applies to your situation. Section 112.313(7)(a)2 provides:
When the agency referred to is a legislative body and the regulatory power over the business entity resides in another agency, or when the regulatory power which the legislative body exercises over the business entity or agency is strictly through the enactment of laws or ordinances, then employment or a contractual relationship with such business entity by a public officer or employee of a legislative body shall not be prohibited by this subsection or be deemed a conflict. [E.S.]
We find that Section 112.313(7)(a)2 is inapplicable to your situation. While we have often found the provision applicable to exempt from the prohibition of Section 112.313(7)(a) situations in which the potentially conflicting relationship was based on the possible “regulation” of a business entity by the Legislature (situations applicable to many “citizen-legislators”), we have treated the lobbying interface with the Legislature differently, irrespective of whether the firms or persons lobbying (and to whom a legislator was connected) were law firms or attorneys.
Especially instructive regarding our treatment of the lobbying interface and illustrative of the inapplicability of Section 112.313(7)(a)2 to the interface are CEO 90-8 and CEO 91-1. In CEO 90-8, issued to a member of the House of Representatives who chaired the Appropriations Committee, who shortly would become Speaker, and who desired to become president and chief executive officer of a private corporation formed to promote the interests of private colleges and universities in Florida, we stated:
Although Section 112.313(7)(a)2, Florida Statutes, exempts from Section 112.313(7)(a) conflicts of interest arising out of a regulatory relationship between your employer and the Legislature, the second part of this prohibition further precludes you from having employment that would create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of your duties as a Legislator. In this regard, we must consider whether the appearance of representatives of the corporation or its member institutions before the Legislature, or the necessity to act on issues of interest to the corporation, would create this type of conflict.
Accordingly, in CEO 90-8 we determined that the member/Speaker would not have a prohibited conflict under the second part of Section 112.313(7)(a) because he would have no role in the organization’s efforts to lobby the Legislature and because he would not personally engage in lobbying activities. In CEO 91-1 (issued to a physician/Senator who sought to be employed as a consultant for Legislative activities of an association of professionals lobbying the Legislature), we stated:
[Section 112.313(7)(a)] prohibits a public officer from having employment or a contractual relationship that will create a continuing and [sic] frequently recurring conflict between his private interests and his public duties, or that would impede the full and faithful discharge of his public duties.
This prohibition '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."' Zerweck v. State Commission on Ethics, 409 So. 2d 57, 61 (Fla. 4th DCA 1982). . . . .
We recognize that all employers in this state are affected by the laws enacted by the Legislature. Further, we recognize that some employers contribute to and join organizations which seek to represent their common interests before the Legislature. Still other employers, including many public agencies, professional associations, and large corporations, maintain a lobbying presence at each legislative session in order to advance their interests. As the members of our Legislature are expected to serve as citizen-legislators on a part-time basis and must be employed elsewhere to support themselves and their families, each of these situations presents the potential for conflicts of interest.
We have concluded that Section 112.313(7)(a) does not prohibit a legislator from having any employment whatsoever with an organization that engages in lobbying the Legislature. In such an instance, we have examined the nature and duties of the legislator's employment to determine whether that employment would present a prohibited conflict of interest.
We repeat our view that a legislator's employment should be completely separated from the lobbying activities of his employer to avoid a violation of Section 112.313(7)(a).
Consequently, we found that the physician/legislator's proposed endeavor would be conflicting in that the subject matter of his proposed private employment arose out of his public position and related directly to issues that would be expected to come before him in his official capacity.
In addition, in CEO 93-24, we found that a prohibited conflict of interest would not be created were a State Senator’s firm to provide insurance consulting services to a company seeking to do business with the Residential Property and Casualty Joint Underwriting Association, reasoning that the Senator’s firm’s activities would not be linked to his legislative position. In CEO 93-24, we stated:
We find that the first clause of Section 112.313(7)(a), Florida Statutes, is not implicated under your scenario because any ‘regulatory power’ that your public agency (the Legislature) would have over any of the business entities or agencies involved would be ‘strictly through the enactment of laws,’ as specified in Section 112.313(7)(a)2, Florida Statutes. . . . .
Under the second clause of Section 112.313(7)(a) we find no prohibited conflict. As the members of the Legislature are expected to serve as citizen-legislators on a part-time basis and must be employed elsewhere to support themselves and their families, each private employment or business endeavor of a legislator presents the potential for conflicts of interests. Accordingly, we examine the nature and duties of the legislator’s private employment or endeavor to determine whether it would present a prohibited conflict of interest.
In finding no conflict in CEO 93-24, we distinguished it from the situation of the physician/legislator, stating:
Further, in [CEO 91-1], as well as in other opinions cited within it, we expressed our concern that a legislator’s private endeavors not involve lobbying the Legislature or encompass activities related to lobbying. Further, in [CEO 91-1], the subject matter of the Senator’s proposed employment arose out of his public position and related directly to issues that might have been expected to come before him in his official capacity. Your situation is fundamentally different than that in CEO 91-1 in that you will be lobbying the [Joint Underwriting] Association and not the Legislature and in that your firm’s insurance consulting expertise arises independent of your legislative position, from a long business history of providing insurance and insurance-related services.
In CEO 93-28, where a subsidiary of a State Senator’s company was providing collection services to an insurance receiver, we again distinguished the first part of Section 112.313(7)(a) from the second part, vis-à-vis Section 112..313(7)(a)2, and stated:
In examining questions regarding members of the Legislature under the second clause of Section 112.313(7)(a), we have expressed our concern that a legislator’s private endeavors not involve lobbying the Legislature, not encompass activities related to lobbying, and not arise out of or directly relate to issues that might be expected to come before him in his official capacity as a legislator. Your scenario does not encompass lobbying the Legislature; your private provision of services to receivers arises from your business expertise and skills, not from your public position; and the subject matter of your private work does not appear to relate directly to issues that might come before you in your public capacity. See CEO 93-24 and CEO 91-1. Therefore, we find no prohibited conflict under the second clause of Section 112.313(7)(a).
Further, see CEO 95-21, in which we found that a State Senator’s service on a domestic insurance company’s board of directors would not create a prohibited conflict of interest with his duties as a Senator and as Chairman of the Senate Banking and Insurance Committee, because the company was not doing business with the Legislature, because the company was subject to the Legislature’s regulation only through legislation, and because his private duties did not involve personally engaging in lobbying activities and did not encompass any activities related to lobbying.
Thus, from the foregoing discussion, it can be seen that our application of Section 112.313(7)(a)2, regarding a wide variety of legislators’ employments and endeavors, has been in relation to the prohibition contained in the first part or clause of Section 112.313(7)(a), not in relation to the whole of the statute’s prohibitions. Our relatively narrow application is consistent with logical application of the exception, in that the first part of Section 112.313(7)(a) contains the prohibition based in a public agency’s “regulation” of a business entity or another agency, with the prohibition of the second part of Section 112.313(7)(a) not being limited to conflicts arising out of regulatory contexts, and in that the exception of Section 112.313(7)(a)2 thus logically “mirrors” or addresses the first part’s prohibition via reference to "regulatory power." And thus it can be seen further that the linchpin of our decisions finding no prohibited conflict in the context of legislators holding employment or positions with entities involved with lobbying the Legislature has been the legislator’s lack of involvement with lobbying or matters related to lobbying.
Therefore, in light of our decisional history specific to members of the Legislature, we find that Section 112.313(7)(a) does not prohibit your having a relationship with the law firm, notwithstanding that other members of the firm lobby the Legislature, provided your relationship comports with the following conditions designed to separate you from legislative lobbying and related matters:
(1) You do not lobby other members of the Legislature in behalf of your firm or its clients, or in regard to matters of concern to the firm or its clients.
(2) Your income from your relationship with the firm, whether characterized as salary, profit-sharing, or some other item, must not flow from the firm’s legislative lobbying activities or from fees or moneys paid the firm for lobbying or related activities. That is, your income or remuneration must come from your activities as a litigator before courts and local government bodies, from your other work unconnected to legislative lobbying, and from firm work unconnected to legislative lobbying; and it must not include bonuses, finders fees, or similar compensation, related to lobbying clients.
(3) You must abstain from voting on or participating regarding claims bills concerning the firm or its clients.
(4) You must not file any legislation for the firm or its clients.
(5) You must disclose your firm’s representation of clients before the Legislature (in order to reveal potential for conflict).
(6) Your employment agreement with the firm prohibits members of the firm from lobbying you on behalf of any firm client.
In essence, one of our purposes in issuing this opinion is to provide you with guidance enabling you to litigate and otherwise practice law in a Statewide firm, while not engaging in or profiting from lobbying or lobbying-related activities concerning the Legislature, thus simultaneously recognizing your status as a part-time citizen-legislator (necessarily involved in earning a living beyond your legislative salary) and preserving the public trust regarding you as a lawmaker.
Accordingly, we find that a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, would not be created were attorneys from your firm other than yourself to represent clients before the Legislature, provided the conditions herein are adhered to.
Would a voting conflict of interest requiring your disclosure (via filing of a memorandum, CE Form 8A) be created under Section 112.3143, Florida Statutes, were you to vote on legislative measures affecting yourself, the firm, and/or the firm’s clients?
This question is answered as set forth below.
Initially, it is important to note that Section 112.3143 itself provides absolutely no bar to a legislator’s voting on any measure or matter whatsoever. In relevant part, with emphasis supplied, the statute provides:
(1) As used in this section:
(a) ‘Public officer’ includes any person elected or appointed to hold office in any agency, including any person serving on an advisory body.
(b) ‘Relative’ means any father, mother, son, daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, or daughter-in-law.
(2) No state public officer is prohibited from voting in an official capacity on any matter. However, any state public officer voting in an official capacity upon any measure which would inure to the officer’s special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom the officer is retained or to the parent organization or subsidiary of a corporate principal by which the officer is retained; or which the officer knows would inure to the special private gain or loss of a relative or business associate of the public officer shall, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143(1)&(2), Florida Statutes.]
Regarding State public officers (such as legislators), the statute merely requires disclosure, and then only if the officer actually votes on certain measures. Concerning the issue of which measures you would be required to disclose your relationships, CEO 96-1 (our opinion regarding the JEA board member/”special counsel”) is instructive. In CEO 96-1, we opined:
Section 112.3143(3), Florida Statutes, prohibits the Board member from voting on a measure which inures to his special private gain or loss, to the special private gain or loss of a principal by whom he is retained, or to the special private gain or loss of a relative or business associate. It also contains an affirmative duty of disclosure so that interested parties and the public will understand why he abstained from voting.
Because the Board member receives a fixed amount of compensation every month from the law firm, which compensation apparently is not dependent on any action that the JEA takes, and because the Board member does not appear to have any other interest in any matter that would be coming before the JEA that would inure to his special gain or loss, it appears that the only reason that he would be prohibited from voting is if [he] knows a matter before the JEA inures to the special gain or loss of a principal by which he is retained, such as the law firm. The mere presence of one of the law firm’s clients before the JEA on some matter does not create a voting conflict of interest. It is only when the Board member knows that a matter before the Board inures to the special gain or loss of the law firm that he is required to abstain from voting. Because of the lack of specific information provided to us concerning matters with which the law firm was involved and which came before the JEA, it is difficult for us to provide any further guidance as to whether the Board member has been presented with voting conflicts of interest . . . .
Thus, while it is apparent that there likely will be situations in which you will not (and situations in which you will) be required to file a memorandum disclosing your vote, we invite your specific inquiries in the future as to particular measures.
Accordingly, we find that you are not required under Section 112.3143 to abstain from voting on any measure affecting you, your firm, or the firm’s clients, but that you may, depending on the particular facts of a given situation, be required to disclose via memorandum your relationship to persons or entities affected by a measure.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 24, 2003 and RENDERED this 25th day of April, 2003.25th day of April, 2003.
 Advisory opinions of the Commission on Ethics cited herein are viewable on the Commission’s website: www.ethics.state.fl.us
 Contextually, we note that we are not the only body or authority to consider matters similar to your inquiry. In February 1999, the Board of Governors of The Florida Bar withdrew Professional Ethics Opinion 67-5 (and its supplemental opinion to Opinion 67-5). Opinion 67-5 determined that it is improper for a lawyer whose partner serves in the Florida Legislature to represent a client before the Legislature as a registered lobbyist even though the lawyer who is a Legislator makes full disclosure of such facts, does not share in any fees generated by the lobbying activities, and disqualifies himself from voting on the proposal for which the lobbying service was rendered. In addition, see Professional Ethics Opinion 59-31. Apparently, the withdrawal of Opinion 67-5 was based, at least in part, on adoption of the Sunshine Amendment (Article II, Section 8, Florida Constitution) and the Code of Ethics for Public Officers and Employees (Part III, Chapter 112, Florida Statutes), subsequent to the issuance of Opinion 67-5, and the resulting adequacy of the Amendment and the Code to address, without the aid of a Florida Bar-based prohibition, situations involving lawyer/legislators.
 Elected from the 27th District.
 You advise that you will receive an annual salary from the firm; that you will not be part of any profit-sharing arrangement with the firm; and that the only bonus compensation for which you will be eligible consist of annual bonuses relating to your hours worked and any new business that you generate for the firm.
 See, inter alia, CEO 75-197 (State Legislator acting as city attorney), CEO 76-167 (State Senator owner of material interest in business selling to State agencies), CEO 77-6 (State Legislator consultant to business entity performing work for agencies of government), CEO 77-10 (State Senator partner in investment group owning land contiguous to municipal airport), CEO 77-13 (State Representative leasing property to Department of Health and Rehabilitative Services), CEO 77-129 (State Representative whose law firm represents condominium associations participating in condominium legislation by authorship, vote, and debate), CEO 79-56 (law firm of State Representative retained by State Attorney), CEO 81-6 (State Representative acting as attorney for corporation eligible to receive State funds), CEO 81-12 (State Representative participating in legislation affecting housing authority represented by his law firm), CEO 83-13 (State Representative employed by engineering firm), CEO 89-6 (State Representative working with law firm to market collection and account receivable services to hospitals), CEO 89-18 (State Representative owning company which operates concessions at public airports), CEO 90-59 (State Representative owning construction company participating in city and county affordable housing programs), CEO 91-8 (State Representative principal of corporation developing county detention facilities), CEO 93-28 (State Senator’s company providing collection services to insurance receiver), CEO 96-4 (State Senator employed in health care industry), CEO 95-25 (State Representative employed by community college to coordinate fundraising activities of college foundation), CEO 89-60 (Speaker of the House serving as chief administrative officer of community college), and CEO 85-86 (State Legislator employed as executive director of community action agency).
 The physician/legislator’s proposed private work included assisting the association in legislative and political education projects, contributing articles for association publication educating the readership on Legislative sessions and outcomes, serving as a liaison with component groups of the association, and advising the association’s executive committee on legislative and political activities of the association.
 Since Section 112.313(7)(a)2 is an exception to a prohibition contained in Section 112.313(7)(a) it must be strictly construed. See State v. Nourse, 340 So. 2d 966 (Fla. 3d DCA 1976), in which the court stated:
Being an exception to a general prohibition, any such statutory provision is normally construed strictly against the one who attempts to take advantage of the exception. (citations omitted) And, unless the right to the exception is clearly apparent in the statute, no benefits thereunder will be permitted. (citations omitted) Any ambiguity in an exception statute is normally construed in a manner that restricts the use of the exception. (citations omitted)
Further, the Commission has wide discretion to interpret Section 112.313(7), Florida Statutes, and courts must defer to its interpretation unless clearly erroneous. Velez v. Commission on Ethics, 739 So. 2d 686 (Fla. 5th DCA 1999).
 We find that our decisions not involving members of the Legislature, even though they may address public officers’ holding of an “of counsel” relationship with a firm lobbying their public agencies (e.g., CEO 96-1, regarding a member of the Jacksonville Electric Authority [JEA]) or may address representation before one’s public body (e.g., In re Mary Jane Arrington, Commission Complaint No. 01-092), are not dispositive of your inquiry.
 Of course, we also find that Section 112.313(7)(a), Florida Statutes, as well as Article II, Section 8, Florida Constitution, and Section 112.313(9)(a)3, prohibits your personal representation of clients before the Legislature; and we also find that Article II, Section 8, and Section 112.313(9)(a)3 do not apply to representations by members of your firm who are not themselves members of the Legislature.
 While an “of counsel” (admittedly a label whose substance is elusive, see CEO 96-1) relationship between you and the firm might be more likely to implement the conditions than your being a partner, shareholder, or associate of the firm, our aim is to achieve a substantive separation between your work at the firm and its legislative lobbying and related matters. Therefore, a reworking of your proposed compensation package as outlined in your letter of inquiry will be required.
 As discussion in this opinion shows, we have issued advisory opinions to a number of legislators in a variety of contexts, and this opinion, like others, is based on a situation regarding a particular public officer in a given context. While our previous opinions and your opinion will most certainly provide guidance to other legislators in other contexts (including lawyer-legislators and legislators in other professions), we cannot provide in this opinion a set of “guidelines applicable to all professions.” Therefore, we encourage other legislators to seek our advice as necessary.
 For purposes of isolating the substantive question answered above, we rephrased your inquiry (enumerated by you as two numbered questions) as one question. Regarding the other aspects of your inquiry, neither Article II, Section 8, Florida Constitution (Sunshine Amendment), nor any provision of Part III, Chapter 112, Florida Statutes (Code of Ethics for Public Officers and Employees), prohibits your personal representation of clients before courts or before local (e.g., municipal) boards while you serve in the Legislature. Further, while Article II, Section 8 (e), Florida Constitution, and Section 112.313(9)(a)3, Florida Statutes, restrict your personal representation of clients before State agencies while you serve in the Legislature, neither provision applies to members of your firm who are not themselves members of the Legislature (see CEO 01-3); however, please note the quarterly client disclosure required of you by Section 112.3145(4), Florida Statutes (see CE Form 2).
 Section 112.3143(4), Florida Statutes, does not apply to elective public officers, such as members of the Legislature. Section 112.3143(4) provides, with emphasis supplied:
(4) No appointed public officer shall participate in any matter which would inure to the officer’s special private gain or loss; which the officer knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained; or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer, without first disclosing the nature of his or her interest in the matter.
(a) Such disclosure, indicating the nature of the conflict, shall be made in a written memorandum filed with the person responsible for recording the minutes of the meeting, prior to the meeting in which consideration of the matter will take place, and shall be incorporated into the minutes. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.
(b) In the event that disclosure has not been made prior to the meeting or that any conflict is unknown prior to the meeting, the disclosure shall be made orally at the meeting when it becomes known that a conflict exists. A written memorandum disclosing the nature of the conflict shall then be filed within 15 days after the oral disclosure with the person responsible for recording the minutes of the meeting and shall be incorporated into the minutes of the meeting at which the oral disclosure was made. Any such memorandum shall become a public record upon filing, shall immediately be provided to the other members of the agency, and shall be read publicly at the next meeting held subsequent to the filing of this written memorandum.
(c) For purposes of this subsection, the term ‘participate’ means any attempt to influence the decision by oral or written communication, whether made by the officer or at the officer’s direction.
 Notwithstanding that CEO 96-1 involved a local public officer (one required to abstain from voting in certain situations) and did not involve a State public officer (one never required to abstain by Section 112.3143), its analysis regarding special private gain or loss and the identities of persons or entities affected by measures of a public officer’s public body is instructive in the instant inquiry because the relevant statutory language is the same. Section 112.3143(3)(a), Florida Statutes, provides:
VOTING CONFLICTS.—No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer’s interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.
 Notwithstanding that Section 112.3143 does not require your abstention as to any matter, we remind you of the condition of Question 1 herein related to your abstention from voting on certain claims bills.