CEO 75-197 -- November 5, 1975
CONFLICT OF INTEREST
STATE LEGISLATOR ACTING AS CITY ATTORNEY
To: Edgar M. Dunn, Jr., State Senator, 10th District, Daytona Beach
Prepared by: Gene Rhodes
Because the regulatory power of the Florida Legislature over both municipalities and special purpose or special tax districts is strictly through the enactment of laws, a state legislator and his law firm may represent cities and tax districts pursuant to the exemption found in s. 112.313(7), F. S., as amended by Ch. 75-208, Laws of Florida. The section generally provides that conflicting employment is constituted where a public official is employed by or contracts with a business or agency subject to his agency's regulation. Exception is made, however, where such regulation is solely through the enactment of laws or ordinances. Occasional voting conflicts of interest could arise, however, and must be disclosed pursuant to s. 112.3143, as created by Ch. 75-208.
Would a prohibited conflict of interest exist if I, a state legislator, or my law firm were retained or employed in the capacity of city attorney for a Florida municipality or as counsel for a special purpose district or special tax district?
This question is answered in the negative.
Your letter of inquiry advises us that you are contemplating the formation of a law firm which may represent units of local government.
In a previous opinion, this commission advised that a state legislator did not violate the Code of Ethics for Public Officers and Employees when he served in the capacity of city attorney. CEO 75-27. Since that opinion was issued, the Legislature has revised the Code of Ethics to read in relevant part:
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 doing business with an agency of which he 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties. Where the agency referred to is that certain kind of special tax district created by general or special laws and limited specifically to constructing, maintaining, managing and financing improvements in the land area over which the agency has jurisdiction, or where the agency has been organized pursuant to Chapter 298, Florida Statutes, then employment with, or entering into a contractual relationship with, such business entity by a public officer or employee of such agency shall not be prohibited by this subsection or deemed a conflict per se; however, that conduct by such officer or employee prohibited by this section or otherwise frustrating the intent of this section shall be deemed a conflict of interest in violation of the standards of conduct set forth by this section. However, when the agency referred to is a legislative body and when 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. . . . [Section 112.313(7), as amended by Ch. 75-208, Laws of Florida; emphasis supplied.]
The nonemphasized portion of the above-quoted standard of conduct prescribes, for the most part, the general rule as to conflicting employment or contractual relationships by public officials. The portion which is italicized excludes from the meaning of the term "regulation" and also from the scope of the term "conflict" the mere enactment of laws and ordinances by a legislative body.
The regulatory power of the Florida Legislature over both municipalities and special purpose districts or special tax districts is strictly through the enactment of laws, thus bringing your contemplated situation squarely within the exception emphasized above. It therefore is our view that your personal representation of these governmental bodies would not create a prohibited conflict of interest under subsection (3) of s. 112.313. Nor do we find any basis for concluding that such representation by your law partners or associates would constitute a conflict.
We would suggest, however, that you be on guard to disclose your interest in legislation affecting any municipality or special legislation affecting any municipality or special tax district represented when you vote on such matters in your official capacity, provided such interest falls within the purview of the following provision:
VOTING CONFLICTS. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest which inures to his special private gain, or the special gain of any principal by whom he is retained, shall within 15 days after the vote occurs disclose the nature of his 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, amended by Ch. 75-208.]