CONFLICT OF INTEREST
PUBLIC SERVICE COMMISSION MEMBER'S SPOUSE WORKING WITH SPOUSE OF
ATTORNEY APPEARING BEFORE COMMISSION
The employment, by a private school, of the wife of a PSC member does not violate Section 112.313(4), Florida Statutes. Neither the Code of Ethics nor Chapter 350 prohibits the PSC member's wife from working with the spouse of a person who represents intervenors before the PSC; nor are the member and his wife prohibited from having a social relationship with the couple. However, the member is subject to certain restrictions on gifts and ex parte communications.
Would the Code of Ethics or Chapter 350 be violated were the wife of a member of the Florida Public Service Commission to contract with a private school to perform public relations and marketing services, where the husband of a member of the school's advisory board represents intervenors before the Public Service Commission?
Your question is answered in the negative.
You write that you are a member of the Florida Public Service Commission. You advise that your wife is a certified public relations professional who has been engaged by the John Paul II Catholic School "to provide marketing/public relations consulting services to promote fund-raising events to benefit the school." You relate that she contracts with the school as a free-lance consultant, through a business which she operates as a sole proprietorship and in which you own no interest and for which you perform no services. You advise that this job came about because when you and your wife moved to Tallahassee, you were introduced to a member of the school's advisory board1 by a mutual friend who thought she (the advisory board member) might be able to help you find housing. The topic of the school came up in conversation, you write, and your wife shared with the board member that she had been involved with public relations and marketing for Christian schools while you lived in Bradenton. The school previously had sought bids for marketing/public relations consultants, but had not received a proposal that met their needs, and you advise that the board member introduced your wife to the school principal and superintendent, who arranged a meeting with the advisory board. Following that, you state, the principal and superintendent recommended to the bishop (who has final approval authority) that the school contract with your wife.
You relate that the advisory board member's husband frequently represents intervenors before the PSC, though not, to your knowledge, regulated utilities, and further, that to your knowledge he had no role whatsoever in your wife's employment. You inquire whether there is any provision of the Code of Ethics or Chapter 350 which would speak to this situation.
As you have no contractual or employment relationship with any person or entity in this scenario, Section 112.313(7)(a), Florida Statutes, which prohibits you from having an employment or contractual relationship with any business entity regulated by or doing business with the PSC, or any contractual relationship which would give rise to a continuing or frequently recurring conflict, is inapplicable here. The only part of the Code of Ethics for Public Officers and Employees implicated here is Section 112.313(4), Florida Statutes, which provides
No public officer, employee of an agency, or local government attorney or his or her spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer, employee, or local government attorney knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer, employee, or local government attorney was expected to participate in his or her official capacity.
Section 112.313(4) prohibits you or your spouse or minor child from accepting anything under circumstances where you know or should know that it is being given in an effort to influence you. The statute requires that the public officer have either actual or constructive knowledge that a provider of an item to the officer, the officer's spouse, or the officer's minor child intended to influence the officer's vote or other official action by provision of the item. Commission on Ethics v. Barker, 677 So. 2d 254 (Fla. 1996).
We previously have advised that this provision places the burden upon the public officer to exercise reasonable care in determining whether a particular thing of value has been given with the intent to influence his official actions and that, assuming the donor is in a position to be benefited by the public officer's or employee's action,
the officer or employee should weigh the value of the thing received against the ostensible purpose for its being given. The larger its value, the more difficult it should be to justify its being given for any reason except to influence, assuming that there is some official action on the part of the recipient anticipated in the future . . . .
CEO 98-21. Here, the entity arguably giving your wife the "thing of value" (the contract) is the school , which has nothing to gain from currying favor with you. Nothing in the facts you have provided suggests that the contract offered to your wife was in any way contingent upon any action or inaction expected of you or was offered to influence any action in which you are expected to participate. Consequently, because there is no indication that you knew or should have known that the contract was given to influence your official actions, we find that your wife's contract with the school does not violate Section 112.313(4), Florida Statutes.
Members of the Public Service Commission are also subject to the ethical standards prescribed in Sections 350.04, 350.041, and 350.042, Florida Statutes. Many of the provisions of these sections prohibit a Commissioner from having a financial interest in, or an employment or business activity with, regulated utilities or entities that are owned, controlled, or affiliated with regulated utilities, but there is no indication in the materials you have provided that you have any such financial interests, employment, or business relationships.
You also inquire whether you would be prohibited from accompanying your wife to social events at which the board member and her husband may be present, and more generally as to what restrictions the Code or Chapter 350 might place on your socializing with the couple. Nothing in the aforementioned statutory provisions speaks to or directly prohibits personal relationships with representatives or employees of intervenors, or even of regulated entities. Therefore, there is nothing in these provisions, or in the Code of Ethics, which would per se prohibit your attending social events at which the board member with whom your wife works and her husband are present.
However, Section 350.041(2)(b), Florida Statutes states that "A commissioner may not accept anything from a party in a proceeding currently pending before the commission." Therefore, you would be prohibited from accepting anything from any intervenor. Further, Section 112.3148(4), Florida Statutes, prohibits you from accepting any gift worth more than $100 from any lobbyist, defined at Section 112.3148(2)(b)1, as
any natural person who, for compensation, seeks, or sought during the preceding 12 months, to influence the governmental decisionmaking of a reporting individual or procurement employee or his or her agency or seeks, or sought during the preceding 12 months, to encourage the passage, defeat, or modification of any proposal or recommendation by the reporting individual or procurement employee or his or her agency.
If the board member's husband represents intervenors before the PSC, or has done so within the last 12 months, he would meet the definition of lobbyist, and Section 112.3148(4) would prohibit you from accepting any gift from him worth more than $100.
Finally, Section 350.042(1), Florida Statutes, prohibits ex parte communications; therefore, you would be precluded from discussing, at a social event, the merits of any matter currently before the PSC, or which you know will come before the PSC within 90 days.
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 16, 2010 and RENDERED this 21st day of April, 2010.
You relate that this member is a "volunteer parent who was asked by the principal to serve on the board" and that the board is "advisory only" with policy being made by the superintendent and principal, subject to the approval of the bishop.