CEO 13-10 - July 31, 2013
DUAL PUBLIC EMPLOYMENT; POST-OFFICEHOLDING
RESTRICTIONS; CONFLICT OF INTEREST
COUNTY COMMISSIONER'S/FORMER SCHOOL BOARD MEMBER'S
COMPANY CONTRACTING WITH SCHOOL BOARD
To: Name withheld at person's request (Gadsden County)
Section 112.3125, Florida Statutes, does not address a county commissioner's LLC contracting with a school board; such would not be "dual public employment" as contemplated by the statute. The commissioner, as a former school board member, would be prohibited by Section 112.313(14), Florida Statutes, from personally representing the LLC before the school board/district for two years following vacation of his school board seat. The commissioner's situation is not indicative of a conflicting employment or contractual relationship under Section 112.313(7)(a), Florida Statutes. CEOs 09-5 and 83-5 are referenced.1
Does newly-enacted Section 112.3125, Florida Statutes, which addresses employment of public officers by the State or any of its political subdivisions, apply to a situation where a County Commissioner's company provides services to a School Board as an independent contractor?
Question 1 is answered in the negative.
In your letter of inquiry, you relate that you are a member of the Board of County Commissioners of Gadsden County, newly-elected to that position in November 2012, and that prior to winning the seat you served as an elected Gadsden County School Board member from 2004 to 2012. Further, you state that you are the managing member of your privately-owned limited liability company (LLC), established in 2009, and that you are contemplating the LLC's contracting with the School Board to provide services to the Board.2
Section 112.3125, Florida Statutes, enacted via Chapter 2013-36, Laws of Florida (CS SB 2), effective May 1, 2013, provides:
DUAL PUBLIC EMPLOYMENT.-
(1) As used in this section, the term "public officer" includes any person who is elected to state or local office or, for the period of his or her candidacy, any person who has qualified as a candidate for state or local office.
(2) A public officer may not accept public employment with the state or any of its political subdivisions if the public officer knows, or with the exercise of reasonable care should know, that the position is being offered by the employer for the purpose of gaining influence or other advantage based on the public officer's office or candidacy.
(3) Any public employment accepted by a public officer must meet all of the following conditions:
(a)1. The position was already in existence or was created by the employer without the knowledge or anticipation of the public officer's interest in such position;
2. The position was publicly advertised;
3. The public officer was subject to the same application and hiring process as other candidates for the position; and
4. The public officer meets or exceeds the required qualifications for the position.
(4) A person who was employed by the state or any of its political subdivisions before qualifying as a public officer for his or her current term of office or the next available term of office may continue his or her employment. However, he or she may not accept promotion, advancement, additional compensation, or anything of value that he or she knows, or with the exercise of reasonable care should know, is provided or given as a result of his or her election or position, or that is otherwise inconsistent with the promotion, advancement, additional compensation, or anything of value provided or given an employee who is similarly situated.
(5) This section may not be interpreted as authorizing employment that is otherwise prohibited by law.
We find that Section 112.3125 does not encompass situations such as the relationship contemplated between your LLC and the School Board, a situation in which you would not hold a position as an employee within the personnel structure of the School District. While in a somewhat loose usage the words "employment," "contractual relationship," and "work" could be said to be synonymous or equivalent, it is plain from the language of the new statute that the type of relationship prohibited, restricted, or subject to conditions, as to a public officer is an in-house employee position with another government entity, not a situation in which one is connected to a company which provides services as an independent contractor.3
Question 1 is answered accordingly.
Would Section 112.313(14), Florida Statutes, prohibit, for two years following vacation of your School Board seat, your contacting the School Board or School Board/District personnel in behalf of your LLC regarding the Board contracting with your LLC for the provision of services?
Question 2 is answered in the affirmative.
Section 112.313(14), Florida Statutes, provides:
(14) LOBBYING BY FORMER LOCAL OFFICERS; PROHIBITION.-A person who has been elected to any county, municipal, special district, or school district office may not personally represent another person or entity for compensation before the government body or agency of which the person was an officer for a period of 2 years after vacating that office. For purposes of this subsection:
(a) The "government body or agency" of a member of a board of county commissioners consists of the commission, the chief administrative officer or employee of the county, and their immediate support staff.
(b) The "government body or agency" of any other county elected officer is the office or department headed by that officer, including all subordinate employees.
(c)The "government body or agency" of an elected municipal officer consists of the governing body of the municipality, the chief administrative officer or employee of the municipality, and their immediate support staff.
(d) The "government body or agency" of an elected special district officer is the special district.
(e) The "government body or agency" of an elected school district officer is the school district.
Under the situation presented, you are a former elected officer, you are within two years of vacation of your former office (School Board member), your representation (contact) in behalf of the LLC would be, in such a business context, "for compensation," and the LLC, while identified with you, is, nevertheless, a legal person or entity distinct from, or not synonymous with, your natural self or your natural person. Our finding herein is consistent with that of In re MICHAEL E. LANGTON, Commission on Ethics Complaint No. 90-86 (Commission on Ethics 1992), in which we found that a member of the Florida House, under identical "another person or entity" language from Section 112.313(9)(a)3., Florida Statutes, which prohibits members of the Legislature from contacting State agencies for compensation during their term of office, violated that statute by representing his wholly-owned corporation before the then Department of Community Affairs.4
Question 2 is answered accordingly.5
Would your LLC's contracting with the School Board or with another governmental entity, other than Gadsden County, create a conflicting employment or contractual relationship for you under Section 112.313(7)(a), Florida Statutes?
Question 3 is answered in the negative.
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.
Under the first part of the statute, your situation does not indicate that you would hold employment or a contractual relationship with the School Board/District or with another government entity. Rather, you would hold employment or a contractual relationship with the LLC, which in turn would hold a contractual relationship with the Board/District or other government entity.6 Further, your situation does not indicate that the County Commission regulates the School Board/District or other government entity. And, to the extent that the County and the Board/District or other government entity would have inter-local agreements between them, we have often found that such agreements do not constitute "doing business" under the first part of the statute. See, for example, CEO 83-5. Under the second part of the statute, your scenario does not indicate that a continuing or frequently recurring conflict or an impediment to the full and faithful discharge of your duties as a County Commissioner would be created were the LLC to contract with the Board/District or another government entity.
Question 3 is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on July 26, 2013, and RENDERED this 31st day of July, 2013.
Morgan R. Bentley, Chair
Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).
In conversation with our staff prior to submitting your written inquiry, you indicated that the services could concern student recruitment and that you would be involved in delivering the LLC's services to the School Board.
We also find that Section 112.3125 does not apply to prohibit your LLC providing services as a contractor to other government entities (e.g., cities, towns, special districts).
However, if a person other than you made the contact with the School Board/District in furtherance of the engagement of the LLC, such would not be prohibited by Section 112.313(14), inasmuch as the statute prohibits only personal contact (representation) by the former elected officer. Nevertheless, if the LLC were to secure a contract with the School Board via contact with the Board/District by persons other than you, your subsequent personal contact with the Board/District would have to be limited to rote, mechanical contact necessary to deliver the LLC's work to the Board/District and could not include contact made in an attempt to get the Board/District to do or not do something. For example, you could contact the District to advise that prospective students would be visiting a school on a certain day, but you could not contact the District to adjust the LLC's contract. See, for example, CEO 09-5.
Under the situation you present, the prohibition of Section 112.313(14) applies only to your personal contact with the School Board/District, not to any such contact with other government entities, including other counties' school districts.
 Assuming that no professional license or other governmental licensure personal to you is necessary for you to perform work for the LLC.