CEO 79-37 -- July 2, 1979
CONFLICT OF INTEREST
GENERAL COUNSEL FOR GOVERNOR REMAINING AS MEMBER OF LAW FIRM WHICH REPRESENTS CLIENTS BEFORE STATE AGENCIES, INCLUDING THE GOVERNOR AND CABINET
To: (Name withheld at the person's request.)
Prepared by: Phil Claypool
Section 112.313(7)(a), F. S. 1977, prohibits a public employee from having any employment or contractual relationship with any business entity which is subject to the regulation of his public agency, which will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which will impede the full and faithful discharge of his public duties. However, s. 112.316 of the Code of Ethics provides that it is not the intent of the code to prevent a public employee from holding private interests which do not interfere with the full and faithful discharge of his public duties. Based on a concurrent reading of these provisions, the Code of Ethics would not be violated were temporary appointment as general counsel to the Governor to be accepted by a member of a law firm which represents clients before state agencies, including the Governor and Cabinet, so long as such private association does not interfere with the performance of his duties as general counsel. It is the opinion of the commission that a conflict of interest would exist were the general counsel or any member of his staff to participate in any matter within the Governor's sole authority which involves a client of the law firm of which he is a member. Otherwise, there would be no violation of the Code of Ethics so long as public disclosure of representations before other state agencies is made as required by s. 112.3145(4), F. S.
Would a prohibited conflict of interest be created were I, a member of a law firm which represents clients before various state agencies, including the Governor and the Cabinet, to accept an appointment as the Governor's general counsel while retaining my interest in the firm?
In your letter of inquiry you advise that the Governor has offered to appoint you as his general counsel for a period of approximately 6 months. In addition, you advise that the general practice law firm of which you are a member will grant you a leave of absence in order to accept the position. Under the terms of this leave of absence, you will not represent clients of the firm but will continue to receive compensation as you will consult with the firm from time to time about management and other matters, including client matters on which you were working prior to taking the leave of absence. These consultations, you advise, will not be at state expense and will not interfere with your duties as general counsel or concern any matter which would involve the Governor's office.
You further advise that your law firm represents clients before various state agencies, with the firm's Tallahassee office being engaged primarily in the practice of environmental and administrative law, and we are advised by the head of the Tallahassee office that that office has represented clients before virtually all state agencies. Therefore, you advise, you would accept the position of general counsel with the understanding that if any matter involving a client of the law firm comes before the Governor, you will recuse yourself and not participate in any way in the Governor's decision.
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. 1977.]
If you accept the position of general counsel, your "agency" will be the Office of the Governor. See s. 112.312(2), F. S. 1977, defining "agency" to include an executive state government entity.
The Code of Ethics also provides as follows:
CONSTRUCTION. -- It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, F. S. 1977.]
Thus, the Code of Ethics itself requires us to examine in detail the possible relationships between the duties of the general counsel and the anticipated activities of your law firm in order to conclude whether your continuing relationship with that firm would interfere with the full and faithful discharge of your responsibilities as general counsel to the Governor.
The functions of the Governor in the executive branch of state government are exercised generally in three ways. Some executive departments, such as the Department of Environmental Regulation and the Department of Business Regulation, are headed by a person appointed by the Governor. Other departments, such as the Department of Natural Resources and the Department of General Services, are headed by the Governor and the Cabinet, who also may function collectively in other capacities, for example, as the Board of Trustees for the Internal Improvement Trust Fund. Chapter 20, F. S. Finally, the Governor individually exercises various powers and duties as authorized by the State Constitution and by state and federal law.
Each department of state government has its own general counsel, we are advised by the present general counsel to the Governor, and the primary responsibility for legal advice with respect to matters of concern to the various departments lies with the general counsel of the department concerned. In addition, the Attorney General and the Department of Legal Affairs are authorized by law to render legal advice to the Governor and to provide legal services for any department, except that a board of which the Attorney General is a member may retain other legal services. Sections 16.01 and 16.015, F. S.
The office of the general counsel to the Governor has the overall responsibility of providing legal advice to the Governor with regard to his constitutional duties as chief executive and chief law enforcement officer for the state. The office presently consists of the general counsel, a deputy general counsel, and four assistant general counsels who are divided into a civil division, responding to the Governor's legal needs as chief executive, and a law enforcement division, which advises the Governor in his role as chief law enforcement officer.
The responsibilities of the law enforcement division, which the present general counsel has advised our staff comprise 50 percent of the work load of the office, present no conflict here as they include coordination between state attorneys, statewide grand jury and organized crime matters, and matters related to misconduct of public officials. The law firm, you have advised our staff, does not maintain a criminal practice, except for the occasional court assignments which are required of most attorneys at various times.
The responsibilities of the civil division cover a broad spectrum of gubernatorial affairs, ranging from executive clemency, legislation, appointments to litigation in which the Governor is a party, preparation of executive orders, and cabinet matters. The vast majority of these duties of the general counsel and his staff in no way relate to any anticipated representations of the law firm, according to information provided by the head of the firm's Tallahassee office.
In our view, s. 112.313(7)(a), quoted above, would not prohibit your continuing relationship with the law firm if the firm represents clients before state agencies headed by the Governor and members of the Cabinet. None of these clients could be considered to be subject to the regulation of the Office of the Governor, as the Governor is not the head of any of these agencies. Nor do we perceive that your responsibilities as general counsel would be impeded or that any continuing or frequently recurring conflict of interest would be created here, as departmental legal counsel would handle these matters. Please note that s. 112.3145(4), F. S. 1977, would require you to make quarterly disclosure of the clients represented by the firm before state agencies while you are general counsel, however. See CEO's 77-72, 76-170, 75-187, and 74-78.
The second general classification of the Governor's executive powers includes those situations in which the Governor and members of the Cabinet collectively constitute the head of an agency. The law firm does represent clients before the Governor and the Cabinet and anticipates continuing such representations. For several reasons, we are of the opinion that s. 112.313(7)(a), above, would not prohibit your serving as general counsel while the law firm makes these types of representations. First, the clients would not be subject to the regulation of the Governor's Office but would be subject to the regulation of the Governor and Cabinet, a collegial body sitting as the head of an agency. Secondly, these matters are handled in the Governor's Office by his cabinet aides as well as by other advisors to the Governor -- not by the general counsel's office, as a matter of course. Thus, in the past the law firm has contacted various cabinet aides regarding cabinet matters but has not contacted the present general counsel or any member of his staff. Finally, we note that much of the legal work of the Cabinet is done by the Attorney General and the Department of Legal Affairs. In addition, we note that you have agreed not to participate as general counsel in any matter involving a client represented by the firm. As these types of representations by the firm would not interfere with the full and faithful discharge of your responsibilities as general counsel, s. 112.316, above, compels us to conclude that no prohibited conflict of interest would be created by these circumstances. Again, public disclosure of such representations should be made pursuant to s. 112.3145(4), F. S.
The third general classification of the Governor's executive powers includes those situations in which the Governor is solely responsible for the decisions to be made, for example, as authorized by the State Constitution and by state and federal laws. As noted above, the great majority of these types of matters are not handled by the law firm and would present no potential for any conflict of interest. However, the firm has indicated that it anticipates representing clients before the Governor's Office in these types of matters during your proposed tenure as general counsel.
The head of the Tallahassee office of the law firm advises that the firm has on only one occasion contacted a member of the general counsel's staff and has not contacted the general counsel at all. While your agreement to recuse yourself in matters involving clients represented by the firm would help avoid conflicts of interest, in situations where the action sought by the client is within the discretion solely of the Governor, as on legislative or Federal Clean Air Act matters, we do not feel that your personal recusal would be sufficient under s. 112.313(7)(a). The general counsel's staff is subject to his control and direction; his duties include hiring and dismissing staff members, as well as evaluating them. Because the general counsel's duties include this authority, it is our view that the participation of an assistant general counsel in a matter within the Governor's sole authority and involving a client of the law firm interferes with the full and faithful discharge of the general counsel's duties, just as his personal participation would interfere with those duties. In addition, it would appear that the conduct of his staff members could be affected either directly or subconsciously by the general counsel's association with the law firm with which they were dealing. Therefore, we are of the opinion that the Code of Ethics would prohibit your serving as general counsel while continuing your association with the law firm if you or any member of the general counsel's office were to participate in a matter within the Governor's sole authority which involved a client of the firm. Otherwise, public disclosure of such representations is required by s. 112.3145(4), F. S.
Subject to the terms and conditions of your employment as indicated herein and the restrictions noted above, it is our opinion that your employment as general counsel to the Governor is not prohibited by the Code of Ethics for Public Officers and Employees.