CEO 78-56 -- September 8, 1978
CONFLICT OF INTEREST
STATE REPRESENTATIVE SHARING OFFICE SPACE WITH LAW FIRM, ONE MEMBER OF WHICH LOBBIES BEFORE THE LEGISLATURE
To: Joseph M. Gersten, Representative, 109th District, Miami
Prepared by: Phil Claypool
Section 112.313(7)(a), F. S. 1977, prohibits a public officer from having a contractual relationship with any business entity which is subject to the regulation of, or is doing business with, his public agency. Where a State Representative shares law office space with a law firm, one member of which lobbies before the Legislature, that member is not deemed to be doing business with the Legislature. However, pursuant to Ch. 78-268, Laws of Florida, lobbyists clearly are subject to the regulation of the Legislature. However, Ch. 78- 268, relating to lobbyist registration and disclosure as well as to legislative regulation of lobbyists, in its specificity and by virtue of its being the latest expression of legislative intent, is deemed to control over the general prohibition contained in s. 112.313(7). Accordingly, no prohibited conflict of interest is created where a State Representative shares office space with a law firm, one of whose members lobbies before the Legislature.
Does a prohibited conflict of interest exist where I, a State Representative, share law office space with a law firm, one member of which lobbies before the Legislature?
Your question is answered in the negative.
In your letter of inquiry you advise that you are an attorney, practicing law as a sole practitioner. You also advise that recently you have moved your law offices so that you are sharing space with another law firm of which you are neither a member nor an associate, although there are business relations between the two firms. In addition, you advise that one of the members of this law firm serves as a lobbyist for Dade County before the Legislature, and it is anticipated that he may represent additional interests before the Legislature.
The Code of Ethics for Public Officers and Employees provides in relevant part:
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. 1977; emphasis supplied.]
The question which must be addressed is whether a lobbyist is subject to the regulation of or is doing business with your agency, the Legislature. Section 112.312(2), F. S.
We are of the opinion that the exercise of the people's constitutional right to instruct their elected representatives and to petition for the redress of grievances under the First Amendment to the United States Constitution and s. 5, Art. I, State Const., does not constitute doing business within the contemplation of the Code of Ethics. It does appear, however, that a business entity which engages in lobbying before the Legislature is subject to the regulation of the Legislature. In this regard, Ch. 78-268, Laws of Florida, requires a legislative lobbyist to register with a joint legislative office and to submit a semiannual statement listing lobbying expenditures and sources of lobbying funds and authorizes the committee of each house charged by its presiding officer with the responsibility for the ethical conduct of lobbyists to investigate any lobbyist upon receipt of a sworn complaint. Section 112.313(7)(a) of the Code of Ethics also 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. [Section 112.313(7)(a)2., F. S. 1977.]
However, this legislative exemption does not apply in the present case. First, under Ch. 78-268 the regulatory power over lobbyists is exercised by the Legislature and does not reside in another agency. Secondly, the regulatory power over lobbyists, while exercised through the enactment of a law, is not exercised strictly through the enactment of the law. The Legislature has retained direct control through the requirements of registration and of submission of lists of expenditures and through the retention of investigative authority. Section 11.045(2), (3), and (6), F. S., as created by s. 1, Ch. 78- 268, Laws of Florida.
Nevertheless, we are of the opinion that the Code of Ethics does not prohibit your relationship with the subject law firm. When registering with the Legislature, every lobbyist is required to state under oath the extent of any direct business association or partnership with any current member of the Legislature. Section 11.045(2), F. S., as created by Ch. 78-268, Laws of Florida. These registrations are required to be open to the public. Thus, your relationship with the subject lobbyist should be disclosed in his registration. In our view this provision, in its specificity and by virtue of its being the latest expression of legislative intent, controls over the general prohibition contained in s. 112.313(7) as a matter of law. Adams v. Culver, 111 So.2d 665 (Fla. 1959), Askew v. Schuster, 331 So.2d 297 (Fla. 1976).
Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit you, a State Representative, from sharing law office space as a sole practitioner with a law firm, one member of which lobbies before the Legislature. The facts that you have described present no issue under the Sunshine Amendment, s. 8, Art. II, State Const., as it does not appear that you are representing a client before a state agency or are contemplating any lobbying activities before the Legislature. Questions concerning your actions as an attorney under the Code of Professional Responsibility, of course, should be addressed to The Florida Bar.