CEO 84-9 -- January 26, 1984

CONFLICT OF INTEREST; SUNSHINE AMENDMENT

STATE REPRESENTATIVE'S FIRM SELLING COMPUTER SOFTWARE TO STATE ATTORNEYS AND PUBLIC DEFENDERS

To: The Honorable Frank S. Messersmith, State Representative, District 85

SUMMARY:

No prohibited conflict of interest would be created were a marketing firm owned by a State Representative to sell computer software to state attorney and public defender offices. CEO's 83-13, 82-33, 81-24, and 78-39 are referenced as precedent. However, the State Representative would be prohibited by Article II, Section 8(e), Florida Constitution, from personally participating in the marketing of computer software systems to state attorney and public defender offices, as the representative would be personally representing another person or entity for compensation during term of office before State agencies other than judicial tribunals.

QUESTION 1:

Would a prohibited conflict of interest be created under the Code of Ethics for Public Officers and Employees were a marketing firm owned by you, a State Representative, to sell computer software to state attorney and public defender offices?

This question is answered in the negative.

In your letter of inquiry you advise that you are a member of the House of Representatives. You also advise that following the recent enactment of sentencing guidelines legislation your marketing firm has signed a letter of agreement with an out-of-state company to sell computer software regarding sentencing guideline requirements. State attorneys, public defenders, and other legal associations would be the likely users of this software. Therefore, you question to what extent you and your firm may participate in the marketing of these computer software systems to the state attorney and public defender offices.

In a number of opinions we have advised that the Code of Ethics for Public Officers and Employees would not prohibit a State legislator's involvement in a business entity selling goods or services to State agencies other than the Legislature. See CEO 83-13 (State Representative employed by engineering firm doing business with the State); CEO 82-33 (State Representative employed by company doing business with Florida Housing Finance Agency); CEO 81-24 (State Senator owning company providing services to State hospital and to hospital employees); and CEO 78-39 (State Representative part owner, officer and director of corporation performing construction work for the State).

Accordingly, based upon the rationale of these opinions, we find that no prohibited conflict of interest would be created under the Code of Ethics for Public Officers and Employees were your marketing firm to sell computer software to state attorney and public defender offices.

QUESTION 2:

Would Article II, Section 8(e), of the Florida Constitution prohibit you, a State Representative, from personally participating in the marketing of computer software systems to state attorney and public defender offices?

This question is answered in the affirmative.

Article II, Section 8(e), Florida Constitution, provides in relevant part:

No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals.

In CEO 81-24, we advised that this provision would prohibit a State Senator from representing his corporation in seeking to have a State hospital purchase the services of the corporation, but that his corporation could be represented by another person in contacting a State hospital or other State agency regarding the provision of services by the corporation. Similarly, in CEO 82-33 we advised that Article II, Section 8(e), would not prohibit a State Representative from being employed by a mortgage insurance company seeking to do business with the Florida Housing Finance Agency, where the Representative would not participate in the company's proposal to the agency and would not communicate with any person connected to the agency regarding the company's bid. More recently, in CEO 83-13, we advised that a State Representative could be employed by an engineering firm doing business with State agencies, where he would not be involved personally in the solicitation or transaction of business or services.

In our view, Article II, Section 8(e), would prohibit you from personally participating in marketing computer software systems to state attorney and public defender offices, which we understand to be State agencies that are not "judicial tribunals." In personally marketing these software systems to State agencies, you would be representing your marketing firm and the computer software company. As we advised in CEO 81-24, the constitutional prohibition is not phrased in terms of representation of a "client" but rather in terms of representation of persons or entities, a choice of language indicating the prohibition of a broader range of representation than that only of "clients" before State agencies.

Accordingly, it is our opinion that Article II, Section 8(e), Florida Constitution, would prohibit you from personally participating in the marketing of computer software systems to state attorney and public defender offices.