CEO 74-87 -- December 23, 1974

CE FORM 2

REQUIRED DISCLOSURE BY UNITED STATES CONGRESSMAN

To: Congressman Sam M. Gibbons, United States House of Representatives, Washington, D. C.

Prepared by: Patricia Butler

SUMMARY:

Under provisions of s. 112.3145(1)(c), F. S., as amended by Ch. 74-177, Laws of Florida, Representative Gibbons, as a public officer, is required to disclose representation on behalf of another before his agency, the United States Congress, or agencies on the same, i.e., federal, level of government. Representative Gibbons is also required to disclose any representations by his law partners before federal agencies, provided he has knowledge of those appearances. Knowledge is interpreted to mean direct information and, in light of the power to remove an officer for "intentional" violation of a provision of the act (s. 112.312, supra), imposes upon Representative Gibbons an affirmative duty to disclose representations brought to his attention but not known by him directly. See CEO 74-78. Congressman Gibbons should file all such disclosures on CE Form 2.

QUESTION:

Must I, as a United States Congressman, file CE Form 2, Disclosure of Clients Represented Before Agencies, if I or any of the members of my law firm represent clients before a federal agency?

This question is answered in the affirmative.

The applicable portion of part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida, states:

Any public officer or candidate who represents another before his own agency or any agency at the same level of government as his own agency, except in ministerial matters, for a fee or commission shall list the agencies before which he appears, and the name of the client whom he represented, in a quarterly report subsequent to such appearance. Representation before any agency shall be deemed to include representation by such public officer or candidate, or any partner or associate or the professional firm of which he is a member and of which he has knowledge. For the purposes of this subsection "representation before any agency" does not include appearances before any court, or appearances before judges or commissioners or industrial claims. This provision shall not include the preparation and filing of forms and applications merely for the purpose of obtaining or transferring a license or operation permit to engage in a profession or business or occupation, provided it does not require substantial discretion, a variance, special consideration, a certificate of public convenience and necessity, a license based on a quota or a franchise, of such agency. [Section 112.3145(1)(c), supra; emphasis supplied.]

The language of this section indicates that representation before an agency includes not only your own agency, i.e., the United States Congress, but also the agencies which are on the same governmental level as the Congress, i.e., the federal level. Thus, any representation made before federal agencies must be disclosed on CE Form 2. This section also requires disclosure of any representations made by your law partners before federal agencies. One basic limitation which is placed on this disclosure requirement is the element of scienter, i.e., the public officer must have "knowledge" of the representation by his or her associates or partners in order for disclosure to be required.

The term "knowledge" is not further defined in part III, supra. However, the context of this section indicates that the proper interpretation would be that the public officer must have direct information as to the representation in order for the disclosure requirement to be applicable. Further, such an interpretation, coupled with the right to remove an officer from office for "intentional" violation of a provision of the act (see s. 112.317, supra), imposes an affirmative duty on the individual to disclose representations which are brought to his or her attention even though he may not have had direct information on the representation initially. See CEO 74-78, a copy of which is enclosed.

It is therefore our opinion that if you, or any of your law partners with your knowledge, represent a client before a federal agency, you as a public officer must disclose such representations by filing CE Form 2.

However, if neither you nor the members of your firm have engaged in such representation, there is no need for you to file CE Form 2 to make a negative report.