CEO 76-207 -- December 16, 1976

CONFLICT OF INTEREST

STAFF ATTORNEY FOR FLORIDA REAL ESTATE COMMISSION ACTING AS REAL ESTATE SALESMAN/BROKER AND ENGAGING IN OUTSIDE PRACTICE OF LAW

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

Prepared by: Phil Claypool

SUMMARY:

An attorney for the Florida Real Estate Commission is prohibited by s. 112.313(7), F. S. 1975, from holding outside employment as a real estate salesman or broker, as he would be employed by a business entity subject to the regulation of his public agency, the Real Estate Commission, and would hold employment which creates a continuing conflict between his private interests and the performance of his public duties and potentially would interfere with the full and faithful discharge of his public duties. His public responsibility is to advise and interpret state laws pertaining to real estate licensing, to prepare rules, and to prosecute or defend matters as directed by the commission. Such duties would not necessarily coincide with his private real estate interests. The Ethics Commission is unable to advise whether or not conflicts might exist in such attorney engaging in the private practice of law, as opinions must be issued within a particular factual context [see s. 112.322(3)(a)] rather than offering general guidelines.

QUESTIONS:

1. Would a prohibited conflict of interest be created were I, a full-time staff attorney with the Florida Real Estate Commission, to act as a real estate salesman or broker on my own time?

2. Would a prohibited conflict of interest be created were I, a full-time staff attorney for the Florida Real Estate Commission, to privately engage in the practice of law?

Question 1 is answered in the affirmative.

You advise in your letter of inquiry that you presently are employed full-time as staff attorney for the Florida Real Estate Commission, created by Ch. 475, F. S., and charged by law with the duty to enforce that chapter. The commission has two broad functions. First, it registers those who wish to act as real estate salesmen or brokers in Florida, and therefore is charged with the responsibility for education, examination, investigation, and approval of applicants. Secondly, the commission investigates alleged violations of Ch. 475; holds hearings in cases where a denial, suspension, or revocation of registration may be imposed; and has the authority to impose any of the above sanctions.

Under Rule 21V-20.11(f) of the Florida Administrative Code, the Legal Section of the Florida Real Estate Commission has the responsibility of advising and interpreting Florida Statutes pertaining to the License Law for the Commission and the public. The above-mentioned Section shall be responsible for the preparation of proposed rules or the prosecution or defense of any matters which the Commission so directs.

You advise that on your own time you wish to operate as a Florida real estate salesman or broker, assuming you will be appropriately registered by the Florida Real Estate Commission.

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. 1975.]

Your "agency," as that term is defined by s. 112.312(2), is the Florida Real Estate Commission. Therefore, the above provision prohibits you from being employed by or having a contractual relationship with a business entity which is subject to the regulation of the Florida Real Estate Commission.

Under Ch. 475, F. S., if you intend to act as a registered real estate salesman, your business policies and acts necessarily will be under the direction, control, or management of a registered broker. A registered broker, whether taking the form of a corporation, partnership, or proprietorship, constitutes a "business entity" within the definition of that term contained in s. 112.312(3) and is regulated by the Florida Real Estate Commission. Therefore, as a registered real estate salesman, you necessarily will be employed or have a contractual relationship with a business entity which is subject to the regulation of the agency that presently employs you. As a registered real estate broker, the same will be true if you are employed by a corporation or partnership which operates as a broker, if you are a partner in a partnership which operates as a broker, or if you are receiving compensation as an officer or director of a corporation which operates as a broker.

Additionally, we feel that your acting as a registered real estate salesman or broker would create a continuing conflict between your private interests and the performance of your public duties, prohibited by the second clause of s. 112.313(7)(a) quoted above. As a staff attorney for the Florida Real Estate Commission, your public duties involve you in the interpretation of Ch. 475 for the commission and the public; the preparation of proposed rules which will govern the conduct of the commission, applicants, salesmen, and brokers; and the investigation and prosecution of alleged violations of Ch. 475. As a registered real estate salesman or broker, your private interests may not always coincide with the full and faithful discharge of these public duties. You will be obliged to comply with rules that you have drafted and with interpretations of law that you have made on behalf of the commission. You are in a position to influence these rules and interpretations as well as investigations and prosecutions of alleged violators of the Real Estate License Law.

While we do not mean to imply that you would not maintain the highest ethical standards imposed by The Florida Bar and the Real Estate License Law, we can foresee many instances in which your duty to protect the public interest in matters of real estate licensing would conflict with personal considerations, or considerations of associates or competitors. It is situations of this nature that the conflict of interest laws are designed to preclude.

We are aware that members of the Florida Real Estate Commission are required by law to be real estate brokers and that s. 112.313(7)(b), F. S., provides an exemption to the prohibition contained in paragraph (a) where conflicting employment is required or permitted by law or ordinance. However, paragraph (b) does not specifically apply in your situation inasmuch as s. 475.02, F. S., requires only that members of the commission be real estate brokers, placing no such requirement on commission employees. Too, members of the commission act "in the sunshine" and accordingly are publicly accountable for their actions. Under Ch. 475 they may be disqualified from participating in decisions concerning the denial, suspension, or revocation of real estate registrations in which they have a conflicting private interest. As there are no similar provisions for recusal of employees, we decline to extend paragraph (b) by analogy. Accordingly, we find that the Code of Ethics for Public Officers and Employees prohibits your acting as a real estate salesman or broker while simultaneously being employed as staff attorney for the Florida Real Estate Commission.

We are unable to answer question 2 as it is phrased.

Section 112.322(3)(a), F. S. 1975, as amended by Ch. 76-89, Laws of Florida, provides in pertinent part as follows:

Every public officer, candidate for public office, or public employee, when in doubt about the applicability and interpretation of this part to himself in a particular context, may submit in writing the facts of the situation to the Commission on Ethics with a request for an advisory opinion to establish the standard of public duty. (Emphasis supplied.)

Based on the above, we are of the opinion that the factual context within which we issue an opinion is insufficiently particular without our being apprised of the identity of the client to be represented and the nature of such client's relationship to the agency served by the public officer or employee. These facts are essential to our deliberations because the clients represented by an attorney with a general practice may be so varied and because we must take into account the sensitivity of the judicial process to possible conflicts of interest. Additionally, inasmuch as our advisory opinion is binding on the conduct of the petitioner [s. 112.322(3)(b), as amended], we perform a quasi-judicial function. As do the courts, we feel that the situation must be defined with sufficient concreteness to allow effective presentation of the issues involved. Accordingly, we are unable to provide you with any "guidelines or restrictions/limitations" as to your private practice of law, as requested.

This opinion is not to be construed as prohibiting you from the private practice of law. Rather, it is to formally advise you that we are obliged to consider questions of conflict only on a situation- by-situation basis. Enclosed are four previous opinions of this commission which may be of general aid to you, and should questions arise as to particular clients or types of legal representation, you are invited to submit the facts of the situation with an opinion request based on those facts.