CEO 89-6 -- March 2, 1989

CONFLICT OF INTEREST; SUNSHINE AMENDMENT

STATE REPRESENTATIVE WORKING WITH LAW FIRM

TO MARKET COLLECTION AND ACCOUNT RECEIVABLE SERVICES

To: The Honorable Anne Mackenzie, State Representative, District 95 (Fort Lauderdale)

SUMMARY:

Neither the Sunshine Amendment nor the Code of Ethics for Public Officers and Employees would prohibit a state representative from marketing the collection and account receivable services of a law firm to health care providers, such as hospitals created as special districts by special act of the Legislature. The Sunshine Amendment, in Article II, Section 8(e), Florida Constitution, prohibits a legislator from personally representing another for compensation before state agencies other than judicial tribunals, but does not prohibit representations before private entities or local government entities, such as special districts. Although Section 112.313(7), Florida Statutes, prohibits public officers from having certain conflicting types of employment or contractual relationships, Section 112.313(7)(a)2 exempts members of legislative bodies which exercise their regulatory power through the enactment of laws or ordinances from conflicts arising out of that regulatory power.

The Sunshine Amendment would not prohibit a state representative from participating in the development of a response to a request for proposals for collection and account receivable services by a state agency on behalf of a law firm, provided that the state representative does not represent the firm before the state agency. As Article II, Section 8(e), is directed at prohibiting representations before state agencies, it does not prohibit a legislator from participating in the development of a response to a request for proposals issued by a state agency. As the regulatory power of the Legislature would be exercised through the enactment of laws, Section 112.313(7) would not preclude participating in the development of the law firm's response.

Finally, neither the Sunshine Amendment nor the Code of Ethics would prohibit a state representative from participating in the development of a response on behalf of the law firm to a request for proposals from a political subdivision or other local government agency or from representing the firm for compensation before the political subdivision or local government agency.

QUESTION 1:

Are you, a State Representative, prohibited by the Sunshine Amendment or the Code of Ethics for Public Officers and Employees from marketing the collection and account receivable services of a law firm to health care providers, such as hospitals which have been created as special districts by special act of the Legislature?

This question is answered in the negative.

In your letter of inquiry you advise that you serve as a member of the House of Representatives and that you have been offered a position with a law firm to develop and implement a comprehensive marketing program for collection and account receivable matters with large institutions and business entities. In addition to generating new business, your responsibilities would include expanding existing client utilization of the firm's services. Existing clients of the firm include retail businesses, financial institutions, health care providers, and various professional service providers.

You further advise that certain of the health care providers which would be the subject of your activities are hospitals which have been created as special districts by special acts of the Legislature. You anticipate that the firm also may wish to respond to various requests for proposals from State or local governments which seek private sector assistance to manage their collection and account receivable matters.

As you are aware, the Sunshine Amendment in Article II, Section (8)(e), Florida Constitution, provides in relevant part:

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.

By its terms, this limitation applies only to State agencies. As a result, we advised in previous opinion CEO 83-13 that a state representative could be employed by an engineering firm to solicit clients which would include various city and county governments. Similarly, in CEO 84-21 we advised that a state representative could be employed as a consultant by a corporation in work involving contacts with city and county governments.

Private health care providers, of course, are not State agencies; neither are hospitals created as special districts by special act of the Legislature, which are considered to be "political subdivisions." See Section 1.01(9), Florida Statutes. As noted by the Florida Supreme Court,

Section 8(e) was designed specifically to prevent those who have plenary budgetary and statutory control over the affairs of public agencies from potentially influencing agency decisions (or giving the appearance of having an influence) when they appear before the agencies as compensated advocates for others. [Myers v. Hawkins, 362 So. 2d 926, 930 (Fla. 1978).]

Although the Legislature does have control over political subdivisions, such as special districts, through the enactment of laws, it is clear that the Legislature does not have the same budgetary control over local government agencies as it does over State agencies through the Appropriations Act. Therefore, we find that the Sunshine Amendment would not prohibit you from marketing the services of the law firm to health care providers, including hospitals created by special act of the Legislature.

Within the Code of Ethics for Public Officers and Employees, Section 112.313(7)(a), Florida Statutes, prohibits public officers from having certain types of conflicting employment or contractual relationships, as follows:

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.

Together with this prohibition is the following exemption:

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).]

This exempts members of legislative bodies which exercise their regulatory power through the enactment of laws or ordinances from conflicts which otherwise might arise out of that regulatory power. Therefore, in previous opinions we have advised that as long as a legislator's employer does not contract with the Legislature, the employer can contract with other State and local agencies. See CEO 81-24, CEO 82-33, CEO 83-13, CEO 84-9, and CEO 84-21 in this regard. As the Legislature's regulatory power over hospitals and hospital districts is exercised through the enactment of laws, this exemption clearly applies to your situation.

Accordingly, we find that neither the Sunshine Amendment nor the Code of Ethics for Public Officers and Employees would prohibit you from being employed to market the collection and account receivable services of a law firm to health care providers, including hospitals created as special districts.

QUESTION 2:

Would the Sunshine Amendment or the Code of Ethics prohibit you from participating on behalf of the law firm in the development of a response to a request for proposals for collection and account receivable services by a State agency, provided that you do not represent the firm before the State agency?

This question is answered in the negative.

In our view Article II, Section (8)(e), only prohibits representation before a State agency and does not prohibit a legislator from performing work under a contract which may be entered into with a State agency. In CEO 82-33, we advised that a state representative would not be prohibited from assisting as an employee of a mortgage insurance company in the performance of a contract between the company and a State agency.

Similarly, we conclude that your participation in preparing a response to a request for proposals from a State agency which does not entail representing another before that agency would not be prohibited by Article II, Section (8)(e). As the Legislature exercises its regulatory power over State agencies through the enactment of laws, it is clear that Section 112.313(7) also would not prohibit your participation in preparing responses to requests for proposals from State agencies.

Accordingly, we find that neither the Sunshine Amendment nor the Code of Ethics would prohibit you from participating in behalf of the law firm in the development of a response to a request for proposals by a State agency, provided that you do not represent the firm before the agency.

QUESTION 3:

Does the Sunshine Amendment or the Code of Ethics prohibit you from participating in behalf of the law firm in the development of a response to a request for proposals from a political subdivision or other local government agency for collection and account receivable services or from representing the firm for compensation before such a political subdivision or local government agency in connection to the response?

This question also is answered in the negative.

As we advised above, Article II, Section (8)(e), does not prohibit a legislator from representing another before political subdivisions or other agencies of local government. In addition, it does not prohibit such in-office work as might be required to obtain a contract with the agency or to perform that contract. As we also noted above, Section 112.313(7) does not prohibit a legislator's employer from contracting with local government agencies.

Accordingly, we find that neither the Sunshine Amendment nor the Code of Ethics would prohibit you from participating on behalf of the law firm in the development of a response to a request for proposals from a political subdivision or other local government agency or from representing the firm for compensation before agencies of local government in connection with the response.