To: (Name withheld at the person's request.)
SUMMARY:
Members of the Florida National Guard are "public officers and employees" subject to the Code of Ethics and the jurisdiction of the Commission on Ethics. Notwithstanding substantial federal connections, the Guard is located within the State Department of Military Affairs, partakes of the sovereign power of the State, and is subject to the control of the Governor and the Adjutant General of the Department.
QUESTION:
Are members of the Florida National Guard "public officers" or "public employees"
By your letter of inquiry and additional information provided by you to our staff, we are advised that you are employed as the associate director of personnel at Florida State University and that you also serve as a master sergeant in the Florida National Guard ("FLNG"). In addition, you advise that . . . . (a major), . . . . (a major), and . . . . (a captain) also are members of the FLNG. You advise that Major . . . . and Captain . . . . hold full-time positions with the FLNG and that you and Major . . . .
You advise that part-time members are paid for monthly drill and summer camp attendance once a month by check from the federal government, that the only time the State of Florida pays part-time members is when they are activated for State duty, such as in the case of tropical storm Alberto, and that State duty pay is by check as OPS (other-personal-services) employees. You advise that the full-time members are full-time federal government employees during the work week, are National Guardsmen on drill weekends and at summer camp, do not receive pay for weekend drill, and do receive federal pay for the two weeks of active duty during summer camp. In addition, you advise that you and the other part-time member will receive federal retirement and receive federal health insurance coverage (not including dependents) when on active duty. Further, you advise that the other part-time member is the only one of you four who will retire with thirty years in the FLNG, thus giving him some retirement from the State of Florida in addition to his federal retirement, and that you and the other two members only will receive federal retirement. Health coverage, you advise, is provided to the full-time members and their families from the federal government.
Additionally, you advise that the FLNG and the Florida Department of Military Affairs are (both for State duty purposes and for administrative purposes of the U.S. Army) one and the same. The federal government, you advise, supplies the National Guard units in all states with the bulk of their funds because, you relate, the units perform more federal duty than state duty. In addition, you advise that the states provide the remaining funds to cover the state duty performed and that part of the federal funding is in the form of positions to help the units, part is the soldiers' drill and summer camp pay, and part is in the form of equipment. You advise that the State pays for the FLNG's land and buildings and provides pay for any State duty performed.
You advise that you and the other three members are in the process of forming a company (a corporation in which each of you will own equal shares) to sell packaged electronic systems (systems integrating various separate electronic components) to the federal government, states, cities, and counties. In addition, you advise, the company also will sell consulting services on how to handle more efficiently the procedures and policies involved in the programs the buyers have that require such electronic systems and will provide translation services to the federal and state governments and to any other law enforcement agencies which need documents translated from foreign languages to English when security clearances are needed to conduct the translation services.
Sections 112.313(3) and 112.313(7)(a), Florida Statutes, are the provisions of the Code of Ethics for Public Officers and Employees which are most applicable to your inquiry.
DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision of any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business or when such offices are on property wholly or partially owned by the legislator.
(a)
(b)
(c)
(d)
Absent the applicability of an exemption under Section 112.313(12), Florida Statutes, Section 112.313(3) would prohibit the company from doing business with your public "agency" or that of the other FLNG members. Further, absent the applicability of an exemption, the first part or clause of Section 112.313(7)(a) would prohibit your or the other members' being a stockholder of the company (the holding of a contractual relationship) if the company is subject to the regulation of or is doing business with your/their public agency.
Section 112.312(2), Florida Statutes, defines "agency"
any state, regional, county, local or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.
We must examine whether you and the other FLNG members are officers or employees of an "agency"
Initially, we note that our inquiry will focus on the FLNG/Department of Military Affairs and, additionally in your case, Florida State University, and thus that other State or local government entities within Florida (i.e. cities, counties, special districts, other State departments) will not be your or the other members' "agency."
We have not previously had occasion, in the context of an advisory opinion, to address the question of whether members of the FLNG are public officers or employees for purposes of the Code of Ethics and jurisdiction of the Commission on Ethics. However, in a complaint proceeding that terminated in favor of the respondent, we did determine that the Adjutant General of the FLNG was within the jurisdiction of the Commission on Ethics, recognizing that under Article X, Section 2(c), Florida Constitution, and Section 250.10, Florida Statutes, the Adjutant General is the functional head of the Florida Department of Military Affairs.
Based upon the reasoning set forth below, notwithstanding the fact that there is substantial federal involvement with the FLNG, we find that members of the FLNG are public officers and employees subject to the Code of Ethics and the jurisdiction of the Commission on Ethics.
(a)
(b)
(c) The governor shall appoint all commissioned officers of the militia, including an adjutant general who shall be chief of staff.
(d)
The Organized Militia shall be composed of the National Guard and such other organized military forces as are now or may be authorized by law.
(1)
(2) "Military personnel of the Department of Military Affairs" includes any person who is required to wear a military uniform in the performance of his or her official duties, and who is required to serve in the Florida National Guard as a condition of his employment by the department.
The Florida National Guard shall consist of members of the militia enlisted therein and of commissioned officers and warrant officers who are citizens of the United States, organized, armed, equipped, and federally recognized, in accordance with the laws of the state and the laws and regulations of the Department of the Army and the Department of the Air Force. . . .
(2) The Adjutant General of the state shall be the Chief of the Military Department.
(b)
(e)1. Prepare and publish by order of the Governor such orders, rules and regulations, consistent with law, as are necessary to bring the organization, armament, equipment, training, and discipline of the Florida National Guard to a state of efficiency as nearly as possible to that of the regular United States Army and Air Force, and he shall attest all orders of the commander in chief relating to the militia.
In State ex rel. Milton v. Dickenson
From these provisions of our organic law it will be seen that that instrument recognizes and provides for the militia as a state institution, of which the chief executive of the state is made the commander in chief . . . . Their [the militia's] other functions and duties are summarized in section 4 of article 14, above quoted, as being subject to the call, not of a county or any local official, but of the governor, to preserve the public peace, to execute the laws of the state, to suppress insurrection, or to repel invasion, not confinedly in any particular county or locality, but anywhere within the borders of the state. In a democratic form of government like ours the military establishment may be said to be the dernier resort of governmental authority, that is never called upon except when all other civil authority fails and becomes powerless to preserve public order. It is the strong arm of, and represents the might of, governmental sovereignty, and is a power that should never be surrendered to an agency of the state, such as a county or municipality, but should be held, as our constitution seems to contemplate, subject to be wielded solely by the supreme sovereign arm of the state.
This view, that the militia of the State (including the National Guard, which comprises a part of the militia which has been organized) is an arm of State government partaking of the sovereign power, in addition to being articulated in Dickenson (a case decided under provisions of the 1885 Florida Constitution which are similar to those found in the current Florida Constitution) has been recognized since the adoption of the 1968 Constitution. See opinions of the Attorney General (AGO's 78-81 and 79-62). Further, AGO 79-62 specifically states that "the National Guard is a part of, or within, the Department of Military Affairs."
Therefore, in view of the foregoing, including the provisions denominating the Department of Military Affairs as an "agency" and recognizing the FLNG as an instrumentality of the State exercising sovereign power, we find that the three FLNG members who hold commissions from the Governor are within the definition of "public officer" found at Section 112.313(1), Florida Statutes, and that they are thus subject to the jurisdiction of the Commission on Ethics and the standards of conduct found within Section 112.313, Florida Statutes. Section 112.313(1) defines "public officer"
However, since you personally, as a master sergeant in the FLNG, do not hold an appointment or commission from the Governor, we must determine whether you are nevertheless a "public officer" and/or a "public employee" subject to the Code of Ethics and the jurisdiction of the Commission on Ethics.
As recognized in Dickenson, AGO 78-81, and AGO 79-62, supra, the FLNG partakes of the sovereign power of the State. Therefore, a member of the FLNG holds an "office" whether or not the member is a commissioned officer. See AGO 84-25 in which the Attorney General opined that a part-time municipal police officer was an "officer," and AGO 86-84 opining that an auxiliary police officer, while he may be an employee of a city, is also an officer, reasoning that the holding of an office implies that one be clothed with the sovereign power. See also Curry v. Hammond, 16 So. 2d 523 (Fla. 1944).
Further, notwithstanding that the federal government plays a large role relative to the FLNG, it appears that members of the FLNG, regardless of whether they are "public officers" as discussed above, are "public employees." See Crawford v. Department of Military Affairs, 412 So. 2d 449 (Fla. 5th DCA 1982), which held that an enlisted member of the FLNG was a State employee for whose negligent acts the State was liable even though the member was operating a federally-owned military truck during weekend training mandated and paid for by the federal government. The court reasoned that even though the federal government maintains an extensive presence in weekend training activities, "[i]t is the direction and control of an employee that is the main test in determining the relationship of employer and employee," and that "section 250.10(1)(b) [now substantively contained in Section 250.10(2)(b), Florida Statutes (Supp. 1994)] indicates that direction and control lie on the state level since it provides that the Adjutant General, appointed by the Governor, is charged with the supervision, training, instruction and discipline of the Florida National Guard." The court went on to state that "[t]he fact that guardsmen are paid by the United States and are required by federal law to attend weekend training are factors to be considered in determining employment, but they are not controlling," and that "[t]he mere fact that a guardsman on weekend training fulfills a federal function does not change the relationship between the state and the guardsman."
While we, unlike a court of competent jurisdiction, cannot determine whether or against whom (the State, the federal government, or both) a plaintiff would have a cause of action or a remedy for an accident involving the FLNG, we do recognize that the primary test for determining whether one is an employee of a particular entity is whether or not the employee is subject to the control and direction of that entity. Under the Florida Constitution and Chapter 250, Florida Statutes, we agree with the court in Crawford
Further, under the facts as represented to us, we do not find that the proposed endeavor would violate the second clause of Section 112.313(7)(a). Your lack of public duty and responsibility as a FLNG member to develop integrated electronic packages, the fact that you would not use licensed products or proprietary information of companies without their permission, and the fact that your knowledge of new electronic systems and products useful in your proposed private endeavor is obtained via events that you attend at your own expense all distinguish your situation from that of the deputy clerks in CEO 92-18 who proposed to develop software for sale to other clerks' offices.
MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others.
For purposes of this provision, the term "corruptly"
'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties.
In addition, we suggest that
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 9, 1995, and RENDERED
Chairman