CEO 95-25 -- August 31, 1995

CONFLICT OF INTEREST; SUNSHINE AMENDMENT;

VOTING CONFLICT OF INTEREST

STATE REPRESENTATIVE EMPLOYED BY COMMUNITY COLLEGE

TO COORDINATE FUNDRAISING ACTIVITIES OF

COLLEGE FOUNDATION

To: Mr. Mark Herron, Attorney (Tallahassee)

SUMMARY:

The Code of Ethics for Public Officers and Employees would not prohibit a community college from employing a State Representative to coordinate the fundraising activities of the college's direct-support organization. The proposed employment would not violate Section 112.313(7), Florida Statutes. Nor would Article II, Section 8(e), Florida Constitution, or Section 112.313(9)(a)3, Florida Statutes, be implicated, since the legislator will not "represent" the college before any State agency or the Legislature. Section 112.3143(2), Florida Statutes, may require her disclosure of votes which inure to the special private gain of her employer, but would not require her abstention from any vote. Section 112.3148(3), Florida Statutes, would not be implicated by her solicitations on behalf of the college and its direct-support organization, since it is not envisioned that she will receive any personal benefit as a result of her efforts on the college's behalf.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit a legislator from being employed by a community college to coordinate the fundraising activities of the college's direct-support organization?

Your question is answered in the negative.

In your letter of inquiry, you represent that you have been authorized to seek this formal opinion on behalf of Tallahassee Community College (TCC), which is contemplating employing State Representative Marjorie Turnbull as its Director of Institutional Development. In that capacity, she would coordinate the fundraising activities of the TCC Foundation, a direct-support organization created pursuant to Section 240.331, Florida Statutes, which is "organized and operated exclusively to receive, hold, invest and administer property and to make expenditures to, or for the benefit of, a community college in this state." It is proposed that if so employed, this individual's responsibilities would include obtaining funds through grants, gifts, donations and otherwise from public and private sources. One potential source of grant funding would be grants obtained from State agencies.

We are further advised that although working for the benefit of the TCC Foundation, this individual will be an employee of TCC, not the TCC Foundation. It is anticipated that she would be compensated on a fixed basis, which would not be conditioned upon nor contingent upon how much money she raises for the TCC Foundation by grant or otherwise.

You represent that this individual would have no personal contact with any agency of State government with respect to her duties at TCC or the TCC Foundation, consistent with the requirements of Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3, Florida Statutes. Nor will she "represent" TCC or the TCC Foundation before any agency of State government as that term is defined in Section 112.312(22), Florida Statutes. You further represent that her employment responsibilities will not encompass activities relating to lobbying the Legislature on behalf of TCC, although she may participate in the decision-making process of whether to approach the Legislature concerning an issue.

As a State Representative, we are advised, this individual currently serves on the House Committee on Higher Education and the Select Committee on Educational Facilities. In that capacity she may be required to vote on matters affecting Florida's community college system or community college direct-support organizations. As a member of the Legislature, she will be called upon to vote on the annual general appropriations act, which may include specific line items directed towards TCC as well as general appropriations to the Division of Community Colleges or to the Department of Education to be allocated to all the community colleges, including TCC. It is anticipated that she would participate in the debate and vote on such measures. In light of the foregoing, you question the applicability of the Code of Ethics for Public Officers and Employees to this proposed employment situation.

Section 112.313(7)(a), Florida Statutes, states:

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), Florida Statutes (1993).]

In connection with this prohibition, Section 112.313(7)(a)2, Florida Statutes, 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.

Construing these provisions under similar circumstances, we previously have advised that the Speaker of the House could serve as chief administrative officer of a community college (CEO 89-60), that a legislator could be employed as an administrator of a State university or community college (CEO 79-59), and that a State Representative could be employed by a State university (CEO 81-14). We have also construed these provisions to permit a State legislator's employment as executive director of a nonprofit corporation receiving State funds. See CEO 85-86 and CEO 82-92. Therefore, based upon the rationale of these cited opinions, we do not believe that this legislator's employment by TCC would present a conflict of interest prohibited by Section 112.313(7), Florida Statutes.

With regard to Article II, Section 8(e), Florida Constitution, and its statutory companion, Section 112.313(9)(a)3, Florida Statutes, these restrictions prohibit a legislator from personally representing an entity for compensation before any State agency other than judicial tribunals. They also prohibit a legislator from lobbying the Legislature until two years after leaving office, even when lobbying on behalf of a public employer. See CEO 90-23 and CEO 90-4. Inasmuch as you have represented that the proposed employment will not involve "representation" of TCC or the TCC Foundation before any agency of State government or the Legislature, we would not expect her employment to violate either Article II, Section 8(e), Florida Constitution, or Section 112.313(9)(a)3, Florida Statutes.

The applicable portion of the voting conflict law states:

No state public officer is prohibited from voting in his official capacity on any matter. However, any state public officer voting in his official capacity upon any measure which would inure to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained; or which he knows would inure to the special private gain of a relative or business associate of the public officer shall, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143(2), Florida Statutes (1993).]

Where the legislator votes on a matter that inures to the special private gain of her employer, TCC, or its direct-support organization, the TCC Foundation, she will need to disclose the nature of her interest in the manner required by Section 112.3143(2), Florida Statutes. This statutory provision does not require abstention from voting by State public officers, such as members of the Legislature.

Finally, we would suggest that TCC and the legislator review Section 112.3148(3), Florida Statutes, which states:

A reporting individual or procurement employee is prohibited from soliciting any gift, food, or beverage from a political committee or committee of continuous existence, as defined in s. 106.011, or from a lobbyist who lobbies the reporting individual's or procurement employee's agency, or the partner, firm, employer, or principal of such lobbyist, where such gift, food, or beverage is for the personal benefit of the reporting individual or procurement employee, another reporting individual or procurement employee, or any member of the immediate family of a reporting individual or procurement employee.

This subsection of the gift law prohibits reporting individuals, such as the legislator, from soliciting any gift, food, or beverage from lobbyists who lobby the Legislature, or from any partner, firm, employer, or principal of such a lobbyist, where the gift, food, or beverage is for the personal benefit of the legislator, another reporting individual or procurement employee, or any member of the immediate family of a reporting individual or procurement employee. In CEO 91-52, we opined that this provision would not be violated where a city councilwoman solicited funds for a nonprofit organization seeking to establish a bird sanctuary and nature center at a city park. Similarly, the legislator would not run afoul of this or other provisions within Section 112.3148, Florida Statutes, as long as she received no personal benefit as a result of her solicitations on behalf of TCC or the TCC Foundation.

Accordingly, we find that the Code of Ethics for Public Officers and Employees would not prohibit a community college's employment of a legislator who will coordinate the fundraising activities of the college's direct-support organization.

ORDERED by the State of Florida Commission on Ethics meeting in public session on August 31, 1995, and RENDERED this _____ day of September, 1995.

__________________________

William J. Rish

Chairman