CEO 03-11 -- August 20, 2003

                                                     

CONFLICT OF INTEREST


 

STATE SENATOR ATTORNEY REPRESENTING HOSPITAL BEFORE LOCAL GOVERNMENT AND PARTICIPATING IN GENERAL AND LOCAL LEGISLATION AFFECTING HOSPITAL


To:      Name withheld at person's request


SUMMARY:

 

No prohibited conflict of interest exists where a State Senator/attorney represents a client (a hospital) before county commissions and in various other matters not involving the Legislature, and where he participates in legislation affecting the client.  Under Article II, Section (8)(e), Florida Constitution, and Section 112.313(9)(a)3, Florida Statutes, his representation of the client is before local (not State-level) agencies.  Under the first part of Section 112.313(7)(a), Florida Statutes, the hospital is neither subject to the regulation of nor doing business with the Legislature; and under the second part of the statute no continuing or frequently recurring conflict or impediment to the full and faithful discharge of public duty exists.[1]

 

QUESTION:

 

Does a prohibited conflict of interest exist where you, a member of the Florida Senate who also are an attorney, represent a hospital on a variety of legal issues and participate in legislation affecting your client?

 

            Your question is answered in the negative.

 

            By your letter of inquiry, we are advised that you serve as a member of the Florida Senate and that you are a practicing attorney.  In addition, you advise that you represent a public hospital on a variety of issues,[2] and that your representation includes meeting regularly with members of the hospital's management team to discuss/address issues of concern to the hospital as they arise from time to time.  More specifically, you advise that you have been tasked with assisting the hospital's children's hospital (located in a county within your Senate District) in its efforts to develop charitable fundraising programs in another county located within your District, and that the representation includes meeting with various people and helping develop documentation for charitable giving.  Further, you advise that you currently are billing the hospital for actual time spent on specific tasks (your previous retainer agreement having terminated on June 1, 2003), exemplified by your current representation of the hospital before the Lee County Commission on issues regarding the County's sign ordinance and the hospital's signs.[3]

 

            Also, you advise that as a Senator you filed general legislation that would have produced funding for all of Florida's trauma centers, including the hospital's trauma center, and that you filed and supported a local bill that created a trauma services special district for the hospital, for purposes of stabilizing the funding of the hospital's trauma center.  However, you stress that the hospital did not compensate you in any way for your efforts as a member of the Legislature.

 

            Thus, you seek our advisory scrutiny of your situation as set forth above, under Article II, Section 8, Florida Constitution, and the Code of Ethics for Public Officers and Employees.[4] 

 

            Regarding Article II, Section 8 (e), Florida Constitution, and Section 112.313(9)(a)3, Florida Statutes,[5] which prohibit, in relevant part, a legislator's compensated representation of a person or entity before a state agency, it is clear that the situation you describe is not prohibited.  While the Counties and their governing boards before whom you have represented the hospital (your paying client) most certainly are "agencies,"[6] they are local level agencies, not State agencies, within the meaning of the prohibitions.  See, for example, CEO 91-54.  Further, while the Legislature most certainly is a State agency, the situation you describe relevant to your legislative activity indicates your performance as an elected lawmaker introducing and participating in legislation affecting a constituent within your District and the State as a whole, rather than your paid representation of the hospital as an attorney.

 

            Regarding Section 112.313(7)(a), Florida Statutes,[7] we also find that the scenario you present does not indicate a prohibited conflict.  The first part of the statute addresses a public officer's or employee's holding employment or a contractual relationship with a business entity or a public agency which is subject to the regulation of or which is doing business with his or her public agency.  This does not apply to your situation because the Legislature (your public agency) is neither "regulating"[8] nor "doing business with" (e.g., contracting with) the hospital.  Further, under the second part of the statute, which potentially applies to any employment or contractual relationship held by a public officer or employee, we find that the situation you present is not indicative of a prohibited conflict of interest occasioned by your representation of clients before county governments.  See CEO 77-22 (State Senator attorney appearing before county commissioners of county within his district to request rezoning for client) and CEO 83-25 (State Senator representing private clients in suits against county water authority).

 

            Also, we must address the issue of whether your filing and supporting general and special legislation of interest to the hospital created a prohibited conflict under the second part of Section 112.313(7)(a).  Under the scenario you present (which includes, very importantly, your representation that you were not compensated in any way by the hospital for your efforts as a member of the Legislature), we find that it did not.  While it does not appear that we have squarely considered the issue of whether a legislator's participation in general and special legislation of concern to his or her private client creates a prohibited conflict under the second part of the statute, we have in a number of opinions found no prohibited conflict in such situations, specifically addressing the first part of Section 112.313(7)(a) in conjunction with Section 112.313(7)(a)2.  The very strong implication of these decisions is that participation in legislation affecting one's client is not violative of either the first or second parts of the statute.  See CEO 77-129 (State Representative's law firm representing condominium associations and Representative participating in condominium legislation), CEO 80-7 (State Representative whose law firm represents a bank participating in banking legislation), CEO 81-12 (State Representative whose law firm represents a housing authority participating in legislation affecting the authority), CEO 91-8 (State Representative serving on corrections committee officer and shareholder of corporation engaged in the business of developing detention facilities), and CEO 95-21 (State Senator chairing banking and insurance committee and serving as director of insurance company).  Especially, we note that although Question 3 of CEO 81-12, which  specifically dealt with a legislator's participation in both general and special legislation affecting his client, did not address Section 112.313(7)(a), the opinion (in its entirety) addressed, inter alia, Section 112.313(7)(a) and concluded that the legislator's situation was not conflicting.

 

            We also find that your participation in special and general legislation under the scenario you describe is not violative of Article II, Section (8)(e), Florida Constitution, or Section 112.313(9)(a)3, Florida Statutes.  See, for example, CEO 81-12 and CEO 90-8.

 

            In our view, the ethical concerns raised by your situation are similar to those raised whenever a member of the Legislature contracts with or is employed by an entity that is represented before the Legislature.  While we have recognized that our elected representatives are expected to serve as citizen-legislators rather than as full-time public officials and that in some instances their employers will be represented before the Legislature, we have insisted that "a legislator's employment should be completely separated from the lobbying activities of his employer to avoid a violation of Section 112.313(7)(a)."  CEO 91-1, where we concluded that a State Senator was prohibited from being employed as a consultant for the legislative and educational activities of a professional association that lobbied the Legislature.  Therefore, the critical fact here is that neither you nor your firm has been employed or compensated to lobby the Legislature for the hospital.  This fact also distinguishes your situation from that in CEO 03-3, which concerns the limitations on a legislator's relationship to a law firm that is engaged to lobby the Legislature.  In addition, we commend the current terms of your agreement with the hospital, under which you are compensated only for the actual time spent on specific tasks, as we believe that this helps to avoid the even the appearance that you may be compensated for matters relating to the legislative affairs of the client.    

 

            Accordingly, we find that the situation you describe is not conflicting under either Article II, Section (8)(e), Florida Constitution, Section 112.313(9)(a)3, Florida Statutes, or Section 112.313(7)(a), Florida Statutes.

     

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 24, 2003 and RENDERED this 29th day of July, 2003.

  

 

________________________

Richard L. Spears, Chairman



[1] Opinions of the Commission on Ethics cited herein are viewable on the Commission’s website:  www.ethics.state.fl.us

[2] You advise that your representation of the hospital began in September 2001 and continued (under a written agreement) until termination of the written agreement on June 1, 2003.  The terms of the agreement, you advise, included the hospital’s payment to you of two thousand dollars per month (for an average of fifteen hours per month of your time).  Further, you advise that during July 2002 and August 2002 you were specifically tasked with representing the hospital before the Collier County Commission in an effort to obtain funding from the County for the hospital’s trauma center, for which you charged the hospital (independent of your monthly retainer) one hundred fifty dollars per hour (for actual time spent on the task), plus expenses.

[3] Additionally, you advise that as an attorney for the hospital you are registered as a "lobbyist" pursuant to a Collier County ordinance and a Lee County ordinance; that you have disclosed all compensation received from the hospital; and that when appearing (as an attorney representing the hospital) before a Lee County Commissioner, a Collier County Commissioner, or any other person or entity, you have fully disclosed the nature of your representation.

[4] Part III, Chapter 112, Florida Statutes.

[5] Article II, Section (8)(e) and Section 112.313(9)(a)3 provide in relevant part, respectively:

 

No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals.

 

No member of the Legislature shall personally represent another person or entity for compensation during his or her term of office before any state agency other than judicial tribunals or in settlement negotiations after the filing of a lawsuit. 

 

[6] "Agency" is defined at Section 112.312(2), Florida Statutes, to mean

 

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.

 

[7] Section 112.313(7)(a) provides:

 

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.

 

[8] See, for example, CEO 03-3 (Question 1); and see Section 112.313(7)(a)2, Florida Statutes, which 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.