CEO 95-9 -- March 9, 1995
CONFLICT OF INTEREST
NATIONAL GUARD MEMBERS OWNING COMPANY DOING
BUSINESS WITH GUARD AND OTHER PUBLIC AGENCIES
To: (Name withheld at the person's request.)
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. Therefore, members of the Guard must conform to Sections 112.313(3) and 112.313(7)(a), Florida Statutes, and to other provisions of the Code of Ethics regarding their formation and operation of a company selling electronic products and consulting services.
Are members of the Florida National Guard "public officers" or "public employees" subject to the Code of Ethics for Public Officers and Employees and to the jurisdiction of the Commission on Ethics?
Your question is answered in the affirmative.
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 . . . . are part-time, being required to attend weekend drill once a month and a two-week summer camp.
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. You advise that you and the other three members each receive W2 income tax forms from the FLNG, with the forms showing the U.S. Army as your employer.
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. Further, by a telephone conversation with our staff, you advised that the three members of the FLNG other than yourself all hold commissions in the FLNG conferred by the Governor of the State of Florida.
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. You advise that neither you nor the other three members have FLNG responsibilities to package or integrate the electronic systems in behalf of the FLNG, that you would obtain the proper marketing license from any company whose product you integrate into your company's package, that your knowledge of recent developments, new products, and trends in electronic products comes from continuing education seminars which you attend at your own expense, and that the equipment and systems you use in your FLNG capacities is selected by the Army and distributed via the military from the top down with no entrepreneurial input expected from you or the other members.
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. They provide respectively:
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. This subsection shall not affect or be construed to prohibit contracts entered into prior to:
(a) October 1, 1975.
(b) Qualification for elective office.
(c) Appointment to public office.
(d) Beginning public employment.
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.
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. In addition, the second clause or part of Section 112.313(7)(a) would prohibit your or the other members' holding a contractual relationship with the company if the relationship would create a continuing or frequently recurring conflict between your private interests and the performance of your public duties or would impede the full and faithful discharge of your public duties, regardless of whether or not the company was subject to the regulation of or was doing business with your public agency.
Section 112.312(2), Florida Statutes, defines "agency" to mean
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. [Emphasis supplied.]
We must examine whether you and the other FLNG members are officers or employees of an "agency" within the meaning of 112.312(2).
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." Therefore, the company may do business with these other entities without you or the other members running afoul of Section 112.313(3) or the first part of Section 112.313(7)(a).
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. See In re ROBERT F. ENSSLIN, Commission Complaint No. 91-160.
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. Article X, Section 2, Florida Constitution, provides:
(a) The militia shall be composed of all ablebodied inhabitants of the state who are or have declared their intention to become citizens of the United States; and no person because of religious creed or opinion shall be exempted from military duty except upon conditions provided by law.
(b) The organizing, equipping, housing, maintaining, and disciplining of the militia, and the safekeeping of public arms may be provided for by law.
(c) The governor shall appoint all commissioned officers of the militia, including an adjutant general who shall be chief of staff. The appointment of all general officers shall be subject to confirmation by the senate.
(d) The qualifications of personnel and officers of the federally recognized national guard, including the adjutant general, and the grounds and proceedings for their discipline and removal shall conform to the appropriate United States army or air force regulations and usages.
Chapter 250, Florida Statutes, the State Military Code, provides in part:
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. [Section 250.02(2), Florida Statutes.]
(1) The agency of the state government heretofore known as the Military Department shall henceforth be known as the Department of Military Affairs of the State, which shall be composed of the military forces as provided in the laws of this state.
(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. [Section 250.05, Florida Statutes.]
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. . . . [Section 250.07, Florida Statutes.]
(2) The Adjutant General of the state shall be the Chief of the Military Department. He shall: . . .
(b) Supervise all troops, arms, and branches of the militia, such supervisory powers covering primarily all duties pertaining to their organization, armament, discipline, training, recruiting, inspection, instruction, pay, subsistence, and supplies. . . .
(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. [Sections 250.10(2)(b) and (e)1, Florida Statutes (Supp. 1994).]
In addition, Article II, Section 5(a), provides:
. . . . No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office . . . .
In State ex rel. Milton v. Dickenson, 33 So. 514 (Fla. 1902), the Florida Supreme Court, in holding that the militia of the State is an arm of the State government, stated:
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. [Id. at 516.]
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" to mean
any person elected or appointed to hold office in any agency, including any person serving on an advisory body.
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. For the reasons stated below, we find that you are.
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, albeit for ethical rather than tort purposes, that members of the FLNG are public employees of the State of Florida by virtue of direction and control exercised via the Governor and the Adjutant General of the Department of Military Affairs.
Therefore, we find that Section 112.313(3) and the first clause of Section 112.313(7)(a) would be violated were the company to sell goods or services to the FLNG or the Department of Military Affairs, absent the applicability of an exemption under Section 112.313(12).
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. However, we caution that any actual use of information not available to the general public and gained by reason of your official positions in order to benefit yourselves, your company, or another would be violative of Sections 112.313(8) and 112.313(6), Florida Statutes, which provide respectively:
DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity.
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. This section shall not be construed to conflict with s. 104.31.
For purposes of this provision, the term "corruptly" is defined as follows:
'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. [Section 112.312(9), Florida Statutes.]
In addition, we suggest that you consult federal authorities regarding any federal standards of conduct which may be applicable to your proposed endeavor.
Accordingly, we find that members of the Florida National Guard are public officers and employees subject to the Code of Ethics for Public Officers and Employees (Chapter 112, Part III, Florida Statutes) and to the jurisdiction of the Commission on Ethics, and, as such, that they must conform their conduct and the operations of any company they form to the limitations of Sections 112.313(3), 112.313(6), 112.313(7)(a), and 112.313(8), Florida Statutes, as set forth above.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 9, 1995, and RENDERED this _____ day of March, 1995.
R. Terry Rigsby