CEO 77-129 -- August 24, 1977

CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST

STATE REPRESENTATIVE WHOSE LAW FIRM REPRESENTS CONDOMINIUM ASSOCIATIONS PARTICIPATING IN A CONDOMINIUM LEGISLATION BY AUTHORSHIP, VOTE, AND DEBATE

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(7)(a), F. S., prohibits a public officer from having a contractual relationship with a business entity which is subject to the regulation of his public agency. However, members of legislative bodies are provided a limited exemption from this prohibition in subparagraph 2. therein "where the regulatory power over the business entity resides in another agency or when the regulatory power which the legislative body exercises is strictly through the enactment of laws or ordinances. . . ." As the regulatory power which the Florida Legislature exercises over business entities within the state is strictly through the enactment of laws, a legislator is not prohibited from representing as an attorney condominium associations so long as he does not corruptly misuse his public position for private gain as prohibited by s. 112.313(6). Nor is a voting conflict of interest deemed to be created where the legislator votes on condominium legislation which affects his clients just as it does all condominium owners, because such vote would not inure to the special private gain of either the legislator or his clients. In the Commission's view the question of what constitutes special private gain turns in part on the size of the class of persons who stand to benefit from the measure. See previous opinions 77-57, 77-111, 77-119, and 76-62. In the instant case, condominium legislation will benefit a very large class of persons -- condominium owners within the state. Accordingly, a voting conflict requiring disclosure pursuant to s. 112.3143 would be created only if particular legislation would be of special benefit to the legislator's clients due to their circumstances being unique as compared with all other condominium owners.

QUESTIONS:

1. Would a prohibited conflict of interest exist were I, a state representative and attorney whose law firm represents condominium associations, to participate in condominium legislation by authorship, vote, or debate where the legislation affects my clients just as it does all condominium owners?

2. Would a voting conflict of interest exist were I, a state representative and an attorney whose law firm represents condominium associations, to vote on condominium legislation that affects my clients just as it does all condominium owners?

Question 1 is answered in the negative.

In response to public allegations of conflict of interest because of your role in the enactment of a law which creates a rebuttable presumption of the unconscionability of certain types of condominium recreation leases, you are inquiring as to the propriety of that role in light of the fact that you are an attorney whose law firm represents condominium associations, among other clients.

The Code of Ethics for Public Officers and Employees provides as follows:

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.]

This provision prohibits a public officer from having a contractual relationship with a business entity which is subject to the regulation of his agency. As a state representative, your agency is the Legislature, whose regulatory powers extend generally over every business entity in the state. However, members of legislative bodies are given a limited exemption from the application of this provision by subparagraph (7)(a)2., which states:

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.

As the regulatory power which the Legislature exercises over business entities in this state is strictly through the enactment of laws, your relationship with condominium associations falls within the exemption and therefore does not present a conflict of interest.

While providing a limited exception for the employment or contractual relationship of members of legislative bodies, the Code of Ethics recognizes that it is possible for a legislator to misuse his public position. Section 112.313(6), F. S. 1975 provides:

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.

This provision prohibits a public officer from corruptly performing his official duties to secure a special benefit for himself or others. As a state representative, your official duties include participating in legislation by authorship, debate, and vote.

The term "corruptly" is defined in the Code of Ethics to mean

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(7), F. S. (1976 Supp.).]

While we are not in a position to judge, in an advisory opinion, your intent with regard to such legislation, we note generally that a legislator necessarily works with legislation that may impinge on his personal financial interests; the very nature of his position is such that he must provide effective representation of his constituents' interests on all issues coming before the Legislature. Where a legislator has participated in legislation on a social or economic issue that he honestly feels is in the best interests of the people of this state, neither is his intent wrongful nor are his actions inconsistent with the proper performance of his public duty.

In addition, a violation of s. 112.313(6), above, requires that an officer must have performed his official duties to secure a special benefit for himself or others. Where a benefit has been secured through a general act of the Legislature which affects a broad class of persons, we are of the view that the phrase "special benefit" contemplates a benefit to a particular person or group which exceeds that received by the other members of the class of persons affected. Here, where you have specified that the legislation affects clients of your firm in the same manner as it affects condominium owners generally, there can be no special privilege or benefit.

Accordingly, we find that there is no prohibited conflict of interest in your participation in condominium legislation by authorship, vote, or debate while also being an attorney whose law firm represents condominium associations and where the legislation affects your clients just as it does condominium owners in general.

As to question 2, the Code of Ethics provides in relevant part:

Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained 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, F. S. 1975.]

When an officer is contemplating voting upon a measure in which he has a professional interest and which inures to the special private gain of himself or his principal, this provision does not require his abstention or prohibit his receiving a special private gain but, instead, merely requires the filing of a memorandum disclosing the nature of his interest, should he elect to vote. In our view, whether a measure inures to the special private gain of an officer or his principal will turn in part on the size of the class of persons who stand to benefit from the measure. Where the class of persons is large, a special gain will result only if there are circumstances unique to the officer or principal under which he stands to gain more than the other members of the class. See CEO 77-57. Where the class of persons benefiting from the measure is extremely small, the possibility of special gain is much more likely. See CEO's 77-111, 77-119, and 76-62.

Here, condominium legislation will benefit a very large class of persons -- condominium owners within the state. Accordingly, if the legislation would be of special benefit to your clients because their circumstances are unique as compared with all other condominium owners, a voting conflict would be created requiring you to file a Memorandum of Voting Conflict if you choose to vote.