CEO 15-11—October 28, 2015

CONFLICT OF INTERESTS

WATER MANAGEMENT DISTRICT EXECUTIVE DIRECTOR’S
SPOUSE MEMBER OF LAW FIRM REPRESENTING
CLIENTS IN DISTRICT MATTERS

To: Peter Antonacci, Executive Director, SFWMD (West Palm Beach)

SUMMARY:

No prohibited conflict of interest is created for the Executive Director of a Water Management District due to his spouse’s membership in a law firm which represents clients in District matters. Under Section 112.313(3), Florida Statutes, the District is not purchasing services from the firm; no “unauthorized compensation” is present under Section 112.313(4), Florida Statutes; Section 112.313(7)(a), Florida Statutes, does not apply to the employment or contractual relationships of a public employee’s spouse; and the spouse is not being hired or appointed to a position in the District, under Section 112.3135, Florida Statutes, the anti-nepotism law. CEOs 90-77, and 11-4 are referenced.1

QUESTION:

Would a prohibited conflict of interest be created for the Executive Director of a Water Management District due to his spouse’s membership in a law firm which represents clients in District matters?


Your question is answered in the negative.


You write that the governing board of the South Florida Water Management District recently appointed you as the District’s Executive Director. Further, you relate that your spouse is a founder (and now an employee) of a law firm which represents clients with interests (primarily, regulatory matters) before the District; and that it has been questioned as to whether the firm’s representation of clients with District matters, coupled with your serving as the District’s Executive Director, creates a prohibited conflict of interest for you2 under Section 112.313,3 Florida Statutes.

Prohibitions within Section 112.31344 which mention spouses or relatives provide:

DOING BUSINESS WITH ONE’S AGENCY.—No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer’s or employee’s spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer’s or employee’s spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer’s or employee’s own agency, if he or she is a state officer or employee, or to any political subdivision or any agency thereof, if he or she is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator’s place of business or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes.]

UNAUTHORIZED COMPENSATION.—No public officer, employee of an agency, or local government attorney or his or her spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer, employee, or local government attorney knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer, employee, or local government attorney was expected to participate in his or her official capacity. [Section 112.313(4), Florida Statutes.]

Section 112.313(3) prohibits, among other things, a public employee, acting as a purchasing agent, from purchasing services from a business entity of which the employee, his spouse, or his child holds certain leadership or ownership positions. It is not applicable to your situation, and no prohibited conflict is created for you under it due to your spouse’s firm’s representation of clients with District matters, since there is no indication that the District, much less you as a purchasing agent for the District, are purchasing, renting, or leasing any realty, goods, or services for the District from your spouse’s law firm.

Section 112.313(4) prohibits a public employee, his spouse, or his minor child from accepting anything of value when the employee knows, or with the exercise of reasonable care should know, that the thing of value was given to influence a vote or other action in which the employee was expected to participate in his official capacity. While a thing of value within the meaning of this statute could, under particular circumstances, encompass something of a non-gratuitous nature, such as legal client business (pay for legal services) provided to a law firm of which a spouse of a public employee of an agency passing on the client’s business or interests is a member of the firm, we see no indication in the situation presented that your spouse’s firm’s clients have directed their business to her firm in order to influence your District conduct regarding their interests; on the contrary, the situation indicates clients’ intent to acquire legal services from a firm accomplished and capable in legal subject matters relevant to their interests before the District.5

Accordingly, we find that no prohibited conflict of interest is created for you due to your spouse’s firm’s representation of clients with matters before the South Florida Water Management District.5


ORDERED by the State of Florida Commission on Ethics meeting in public session on October 25, 2015, and RENDERED this 25th day of October, 2015.


____________________________________

Stanley M. Weston, Chair


[1]Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).

[2]Your inquiry does not indicate that your spouse, herself, in addition to being a member of a private sector law firm, is a public officer, public employee, or local government attorney subject to Section 112.313.

[3]Since you are an employee of the District rather than a member of its governing board, it does not appear that the voting conflicts law, Sections 112.3143(3) and 112.3143(4), Florida Statutes, would apply to you. However, should you, in your public service, become a member of a collegial body decisionmaker, you should comply with these statutes, if the measure/matter voted upon or considered would inure to the economic gain of your spouse. Section 112.3143(1)(d), Florida Statutes; CEO 11-4. Also, you, like all other public employees, are subject to and must comply with Sections 112.313(6) and 112.313(8), Florida Statutes, which prohibit corrupt use of public position and use of “inside information,” respectively. However, both of these statutes would require intentional conduct on your part, and neither is triggered merely by your spouse’s firm’s representation of clients with District matters.

[4]Section 112.3135, Florida Statutes, the State’s anti-nepotism law, necessarily concerns wives, husbands, and other relatives, and their hiring or appointment to public positions. However, it is not implicated in your situation, inasmuch as there is no indication that your spouse is considering being employed by, or appointed to a position in, the District.

[5]Section 112.313(7)(a), Florida Statutes, also found within Section 112.313, is not triggered by the situation presented. This provision applies only to outside employment and contractual relationships of a public employee, not to those of his or her spouse; the situation presented does not indicate that you, as opposed to your spouse, hold any employment or contractual relationship with her firm or its clients; and we have not found marriage to be a contractual relationship within the meaning of the statute. CEO 90-77. 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.