CEO 74-78 -- November 25, 1974
REPRESENTATION BEFORE AGENCIES
REPORTING OF REPRESENTATIONS MADE BY PUBLIC OFFICER'S PARTNERS AND ASSOCIATES
To: Phillip E. Searcy, Attorney, Hollywood
Prepared by: Gene L. "Hal" Johnson
Section 112.3145(1)(c), F. S., as amended by Ch. 74-177, Laws of Florida, requires a public officer to report his own representations, or those of his partners or associates of which he has knowledge, before any agency at the same level of government as his own agency. Such representations are to be disclosed on CE Form 2. A limitation basic to this disclosure is the element of scienter; the public officer must have direct information as to the representation by another in order for the disclosure requirement to be applicable. Further, as provisions for removal set forth in s. 112.317, F. S., point up, the officer has an affirmative duty to disclose representations brought to his or her attention even though he or she may not have had direct information initially. Thus, despite the extended number of employees and offices in Mr. Searcy's firm, he, as a member of the Resource Recovery and Management Advisory Council, has a duty to exercise reasonable care in seeing that he does receive actual knowledge of representations which a reasonably prudent person would be expected to receive and to disclose on CE Form 2.
Must I, as an associate of a firm having more than 275 employees located in five offices across the state, list on CE Form 2, Representations Before Agencies, every representation made by my firm before an agency on the same level of government by virtue of my status as a public officer serving on the Resource Recovery and Management Advisory Council?
Your question is answered in the affirmative in that you must report those representations of which you have knowledge.
The Code of Ethics for Public Officers, Employees, and Candidates requires that a public officer or candidate
who represents another before his own agency or any agency at the same level of government as his own agency, except in ministerial matters, for a fee or commission shall list the agencies before which he appears, and the name of the client whom he represented, in a quarterly report subsequent to such appearance. Representation before any agency shall be deemed to include representation by such public officer or candidate, or any partner or associate of the professional firm of which he is a member and of which he has knowledge. [Section 112.3145(1)(c), F. S., as amended by Ch. 74-177, Laws of Florida.]
In addition to requiring the reporting of clients he has personally represented, the Legislature expanded the term "representation before any agency" to encompass representations by "any partner or associate of the professional firm of which he is a member and of which he has knowledge." Certain types of representation are specifically excluded from this listing. One basic limitation placed on this disclosure requirement is the element of scienter, i.e., the public officer or candidate must have "knowledge" of the representations by his associates or partners in order for a disclosure to be required.
The term "knowledge" is not further defined in part III, Ch. 112, F. S. However, the context of this section indicates that the proper interpretation would be that the public officer must have direct information as to the representation in order for the disclosure requirement to be applicable. Further, such an interpretation, coupled with the right to remove an officer or candidate from the office or ballot for "intentional" violation of a provision of the act (see s. 112.317, F. S., as amended by Ch. 74-177, Laws of Florida), imposes an affirmative duty on the individual to disclose representations which are brought to his attention even though he may not have had direct information on the representation initially.
If it is physically and clerically impractical for you to be informed of all pertinent appearances the firm would have with various agencies or units of government at your level, you are required to list on CE Form 2 only those representations of which you have direct knowledge or those which have been brought to your attention.
In summary, it is the opinion of this commission that the phrase "of which he has knowledge" means actual knowledge, especially in view of the intentional violation provision of the act. We would go further, however, and point out that a deliberate effort to evade actual knowledge would be unethical. A reporting public officer has a duty to exercise reasonable care in seeing that he does receive actual knowledge of representations which a reasonably prudent person would be expected to receive.