CEO 79-56 -- September 6, 1979

CONFLICT OF INTEREST

LAW FIRM OF STATE REPRESENTATIVE RETAINED BY STATE ATTORNEY

To: (Name withheld at the person's request.)

Prepared by: Phil Claypool

SUMMARY:

No prohibited conflict of interest would be created were a state attorney to retain the services of a law firm of which a state representative is a member to serve in the capacity of assistant to the state attorney under provisions of s. 27.18, F. S. Although s. 112.313(7)(a) prohibits a public officer from having any employment or contractual relationship with an agency subject to the regulation of his public agency, as is the state attorney's office by the Legislature, s. 112.313(7)(a)2. provides a specific exemption when the public officer is a member of a legislative body and the regulatory power exercised is strictly through the enactment of laws, as is the case here. Additionally, the duties of an assistant to the state attorney do not include representation of that office before any state agencies, so as to preclude potential violation of s. 8(e), Art. II, State Const.

QUESTION:

Would a prohibited conflict of interest be created were a state attorney to retain my law firm to provide legal services while I am a member of the Florida House of Representatives?

Your question is answered in the negative.

In your letter of inquiry you advise that the State Attorney of Broward County has indicated a desire to retain your law firm at an hourly rate to provide legal services. In this capacity, you would not be employed as an assistant state attorney, but rather as an assistant to the state attorney, with his office simply being a client of the firm. You question whether this relationship would present any conflict with your position as a member of the Florida House of Representatives.

As an assistant to the state attorney, you advised in a telephone conversation with our staff, your responsibilities would be those outlined in s. 27.18, F. S., which provides:

Assistant to state attorney. -- The state attorney, by and with the consent of court, may procure the assistance of any member of the bar when the amount of the state business renders it necessary, either in the grand jury room to advise them upon legal points and framing indictments, or in court to prosecute criminals; but, such assistant shall not be authorized to sign any indictments or administer any oaths, or to perform any other duty except the giving of legal advice, drawing up of indictments, and the prosecuting of criminals in open court. His compensation shall be paid by the state attorney and not by the state.

In such a capacity, you advised, you most likely would become involved if the state attorney needed assistance in order to handle prosecutions dealing with a particular problem or in the event an assistant state attorney was presented with a conflict of interest on a particular case. However, you have agreed not to become involved in the prosecution of elected officials. In addition, you advised in that conversation, it is possible that you would render legal advice to the state attorney's office and represent that office in court proceedings, although you would not be engaged in representing the state attorney's office before any state agencies.

The Code of Ethics for Public Officers and Employees provides 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 is 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. [Section 112.313(7)(a), F. S.]

The office of state attorney clearly is subject to the regulation of the Legislature. Part I, Ch. 27, F. S. However, s. 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.

As the regulatory power which the Legislature exercises over state attorneys is strictly through the enactment of laws, the express exception quoted above is applicable in this instance.

Accordingly, we find that no prohibited conflict of interest under the Code of Ethics for Public Officers and Employees would be created if your law firm were to be retained by the State Attorney of Broward County while you serve as a member of the House of Representatives. We note that the Attorney General informally advised you on July 3, 1979, that the position of assistant to the state attorney "constitutes a position of 'employment,' and, therefore, the dual officeholding prohibition contained in s. 2, Art. II, State Const., would not be applicable to such an assistant."