CEO 96-4 -- January 29, 1996
CONFLICT OF INTEREST; SUNSHINE AMENDMENT;
VOTING CONFLICT OF INTEREST
STATE SENATOR CONTEMPLATING FUTURE EMPLOYMENT OPPORTUNITIES
IN HEALTH CARE INDUSTRY
TO: Mark Herron, Attorney (Tallahassee)
The Code of Ethics for Public Officers and Employees would not prohibit a State Senator from becoming employed by a corporation involved in the health care industry. The proposed employment would not violate Section 112.313(7)(a), Florida Statutes, since the Legislature=s regulation of that industry is strictly through the enactment of laws. The Senator has represented that he would not represent the corporation before any level of State government, so there is no indication that the Sunshine Amendment (Article II, Section 8(e), Florida Constitution) nor its statutory counterpart, Section 112.313(9), Florida Statutes, would be implicated. Any voting conflicts of interest that may develop require disclosure, not abstention, and the Senator is prepared to comply with the requirements imposed by the voting conflict law, Section 112.3143(2), Florida Statutes. Finally, none of the information reviewed insinuates the clear potential for violations of Section 112.313(6) or 112.313(8), and none are presumed. However, the Senator is advised to keep separate his private interests from his public responsibilities, thereby avoiding allegations of misuse of position or disclosure or use of certain information.
Does the Code of Ethics for Public Officers and Employees prohibit a State Senator from becoming employed by a corporation which focuses on market research and business development of various health care clients?
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 Alberto Gutman, a member of the Florida Senate. You advise there and in supplemental correspondence that the Senator is contemplating future employment opportunities, and that one such opportunity involves employment by a corporation which focuses on market research and business development of various health care clients. In considering employment with this corporation, it is anticipated that his responsibilities would encompass market research and analysis, development of health care provider networks, and analysis of financial information for the purpose of making recommendations concerning establishment and development of the company in various market areas. You further represent that the Senator would be a salaried employee, with performance-based incentives included in his compensation package. You further assert that the Senator would not represent the corporation before any agency of the State of Florida and that he would not be responsible for permit or licensing applications at any level of government.
We are advised that, as a State Senator, his current committee assignments include Banking and Insurance; Commerce and Economic Opportunities; Ways and Means, Subcommittee C; and the Select Committee on Social Services Reform. You also acknowledge that as a State Senator, he may be called to vote upon legislation affecting his professional interests.
In light of the foregoing, you question the applicability of the Code of Ethics for Public Officers and Employees to his prospective 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 or she 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 or her private interests and the performance of his or her public duties, or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes (1995).]
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 a State Senator chairing the Banking and Finance Committee could serve as a director of an insurance company (CEO 95-21); and that a State Representative serving on the House Corrections Committee could be an officer and shareholder of a corporation engaged in the business of developing detention facilities (CEO 91-8). It is our view that the rationale of these opinions would also be applicable to the Senator, and that his prospective employment opportunity, as described, would not violate Section 112.313(7)(a), Florida Statutes.
Public discourse in Florida has long debated the competing models of Apart-time@ or Acitizen@ legislatures whose members are encouraged to have outside employment versus Afull-time@ or Aprofessional@ legislatures which eliminate their members= private employment pursuits. Notwithstanding this debate, Florida=s constitution and laws presently preserve the notion of a Acitizen@ legislature, and only those outside employment opportunities that contravene the conflict of interest statutes are prohibited. Here, where Section 112.313(7)(a)2 expressly permits legislators to be employed by a business entity even though the Legislature regulates that entity through the enactment of laws, we cannot construe the statute to be violated in this instance.
With regard to Article II, Section 8(e), Florida Constitution, and its statutory counterpart, Section 112.313(9)(a)3, Florida Statutes, these restrictions prohibit a State Senator from personally representing an entity for compensation before any State agency other than judicial tribunals. They also prohibit a State Senator from personally lobbying the Legislature until two years after leaving office, even when lobbying on behalf of a public employer. Inasmuch as you have represented that the Senator=s proposed employment will not involve "representation" of the corporation before any agency of State government, we would not expect his employment to violate either Article II, Section 8(e), Florida Constitution, or Section 112.313(9)(a)3, Florida Statutes, as long as he abides by these proscriptions.
The applicable portion of the voting conflict law states:
No state public officer is prohibited from voting in an official capacity on any matter. However, any state public officer voting in an official capacity upon any measure which would inure to the officer=s special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom the officer is retained or to the parent organization or subsidiary of a corporate principal by which the officer is retained; or which the officer knows would inure to the special private gain or loss of a relative or business associate of the public officer shall, within 15 days after the vote occurs, disclose the nature of his or her 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 (1995).]
Where the Senator votes on a matter that inures to the special private gain or loss of the employing corporation or its parent organization or subsidiary, he will need to disclose the nature of his interest in the manner required by Section 112.3143(2), Florida Statutes. However, it is noted that this statutory provision does not require abstention from voting by State public officers, such as State Senators.
Another area that must be addressed is the prohibition contained in Section 112.313(6), Florida Statutes, against using one=s public position for personal gain or benefit where one=s actions are undertaken with a wrongful intent and in a manner which is inconsistent with the proper performance of public duties. Similarly, Section 112.313(8), Florida Statutes, prohibits a public officer from disclosing or using certain information not available to the general public and obtained through his public position for either his personal gain or benefit or for that of some other person or business entity. Nothing we have reviewed concerning the Senator=s potential employment implicates either provision, and particularly with regard to Section 112.313(6), we generally are unable to determine in the context of an advisory opinion whether this provision will be violated since it requires an examination of intent. Nonetheless, we observe that both Sections 112.313(6) and 112.313(8) are susceptible to the appearance of abuse where one uses his perceived influence or information not widely available to obtain personal pecuniary benefits. Therefore, the Senator should be cautioned to use the utmost care in protecting his public position from allegations of impropriety, and to ensure that he keeps separate his private business endeavors from his public responsibilities.
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on January 25, 1996, and RENDERED this 29th day of January, 1996.
William J. Rish