CEO 88-68 -- October 19, 1988

CONFLICT OF INTEREST; SUNSHINE AMENDMENT

STATE REPRESENTATIVE EMPLOYED AS EXECUTIVE DIRECTOR

OF NONPROFIT CORPORATION REPRESENTING INTERESTS OF LANDOWNERS

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

SUMMARY:

The Code of Ethics for Public Officers and Employees does not prohibit a state representative from being employed as the executive director of a nonprofit corporation which has been formed to represent the interests of landowners within an area of the district which he represents. Article II, Section 8(e), Florida Constitution, would prohibit a state representative from representing his employer before state agencies other than judicial tribunals, but would not prohibit him from representing his employer before local governmental bodies. As the representative would be paid as an employee on an ongoing basis to represent his employer's interests before governmental agencies, it is suggested that he refrain from contacting state agencies even in his legislative capacity regarding matters which would directly benefit members of the corporation, in which his employer has expressed an interest, or about which he may be contacting local agencies.

QUESTION:

Does the Code of Ethics for Public Officers and Employees or the Sunshine Amendment to the Florida Constitution prohibit you, a State Representative, from being employed as the executive director of a nonprofit corporation which has been formed to represent the interests of landowners within an area of the District which you represent?

Your question is answered in the negative, subject to the condition noted below.

Through your letter of inquiry and telephone conversations with our staff, we have been advised that you have been offered the position of executive director with a nonprofit corporation composed of a number of major property owners located within an area of the District which you represent as a member of the Florida House of Representatives. You advise that the goals and objectives of the nonprofit corporation include guiding and assisting governmental bodies in the planning, funding, and construction of an adequate infrastructure network within the area to the year 2010; providing for sound environmental planning and the adequate and realistic protection of sensitive ecological systems within the area, while balancing rights of private property ownership; establishing and maintaining sound communication networks with governmental officials, private and civic associations, and the media in an effort to promote the corporation's positions; and establishing direct liaison with individual property owners in the area to promote membership and involvement with the corporation.

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), Florida Statutes (1987).]

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), Florida Statutes (1987).]

We previously have advised that this provision of the Code of Ethics would not prohibit a state legislator from being employed as a city attorney or as counsel for a special taxing district. See CEO 75-197. Similarly, we have advised that a state representative would not be prohibited from being employed by an engineering firm where his employment would involve soliciting various city and county governments as clients for the firm, and that a state representative may be employed as a consultant by a private correctional facility corporation where his role would be to assist in locating sites for correctional facilities, primarily involving contacts with city and county governments. See CEO 83-13 and CEO 84-21. Based on the rationale of these opinions, we find that Section 112.313(7) does not prohibit your employment with the nonprofit corporation.

The Sunshine Amendment to the Florida Constitution also contains a limitation on a legislator's private employment.

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. [Article II, Section 8(e), Florida Constitution.]

Under this provision we have advised that a state representative would be prohibited from personally participating in the marketing of computer software systems to state attorney and public defender offices, and that a state senator should not personally represent his corporation in seeking to have the corporation provide services to a state hospital. See CEO 84-9 and CEO 81-24. However, as cities, counties, and other local governmental bodies are not state agencies, we concluded in CEO 83-13 that the state representative could be employed by the engineering firm to solicit business from cities and counties and, in CEO 84-21, that the state representative could be employed as a consultant by a company doing business with the Department of Corrections where his role would involve contacts with city and county governments. Similarly, we conclude that Article II, Section 8(e), would not limit your ability as an employee of the nonprofit corporation to contact personally city, county, and other local governmental entities in behalf of the nonprofit corporation.

The Sunshine Amendment's prohibition clearly was not intended to preclude a legislator from representing his constituents' interests through contacting State agencies, as it expressly prohibits only representations of another "for compensation." However, where a legislator is being compensated as an employee on an ongoing basis to represent his employer's interests before governmental agencies, we find it extremely difficult to draw a line distinguishing representation in a legislative capacity of these interests as being constituent matters, as there is at least the appearance of being compensated for contacts with State agencies regardless of whether the legislator formally indicates that he is acting in his legislative capacity. Therefore, we suggest if you accept employment as executive director of the nonprofit corporation, that you refrain from contacting State agencies regarding matters which would directly benefit members of the corporation, in which the corporation has expressed an interest, or about which you may be contacting local agencies as executive director.

Accordingly, subject to the restriction and the suggestion noted above, we find that neither the Code of Ethics for Public Officers and Employees nor the Sunshine Amendment to the Florida Constitution would prohibit you from being employed as the executive director of the nonprofit corporation while remaining a member of the House of Representatives.