CEO 81-12 -- February 26, 1981

SUNSHINE AMENDMENT; VOTING CONFLICT OF INTEREST

STATE REPRESENTATIVE PARTICIPATING IN LEGISLATION AFFECTING HOUSING AUTHORITY REPRESENTED BY HIS LAW FIRM

To: H. Lee Moffitt, State Representative, 66th District, Tampa

SUMMARY:

Article II, Section 8(e), Florida Constitution, prohibits a legislator from personally representing a client before State agencies other than judicial tribunals. See CEO 77-168 as to what constitutes "representation" before an administrative agency. Aside from this restriction, neither the legislator nor his law firm is prohibited either by the Sunshine Amendment or the Code of Ethics from representing a municipal housing authority. As to whether a voting conflict of interest would be created were the legislator to participate in consideration of legislation affecting the housing authority which his firm represents, reference is made to CEO 77-129. Generally, a voting conflict would be created only were the legislator to participate in consideration of special legislation affecting in particular the housing authority which is represented in legal matters by his law firm.

QUESTION 1:

Does Article II, Section 8(e), of the Florida Constitution prohibit you or your law firm from representing a city housing authority while you serve as a member of the Florida House of Representatives?

In your letter of inquiry you advise that you are a member of the Florida House of Representatives and that you are a senior partner in a law firm which currently represents the Tampa Housing Authority in various legal matters. You also advise that the Authority is a potential subject for special and general legislation, as are all housing authorities.

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.

This provision does not prohibit you or your law firm from representing any particular client, including a housing authority. However, the provision does limit the extent of your personal representation of a client, although it does not limit the extent to which other partners or members of your law firm may represent a client. For example, your personal representation of the housing authority before the courts of this state is not precluded, since the courts are "judicial tribunals." See Myers v. Hawkins, 362 So. 2d 926 (Fla. 1978), in which the Florida Supreme Court held that the Public Service Commission is not a judicial tribunal. However, you would be prohibited from representing the Tampa Housing Authority before state agencies other than "judicial tribunals," such as executive departments and administrative hearing officers, in regulation, rulemaking, or other administrative proceedings. See CEO 78-2. For additional information as to what will constitute "representation" before an administrative agency, we refer you to another advisory opinion, CEO 77-168.

Accordingly, so long as you do not personally represent the Housing Authority before state agencies other than judicial tribunals, we find that Article II, Section 8(e), Florida Constitution, does not prohibit you or your law firm from representing the Tampa Housing Authority while you serve as a member of the Florida House of Representatives.

QUESTION 2:

Does a prohibited conflict of interest, under the Code of Ethics for Public Officers and Employees, exist where your law firm represents a city housing authority while you serve as a member of the Florida House of Representatives?

This question is answered in the negative.

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.]

This provision would prohibit a State Representative from being employed by, or having a contractual relationship with, a governmental agency which is subject to the regulation of the Legislature. However, the following provision of the Code of Ethics creates an exemption from this prohibition for members of legislative bodies:

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. ]

A similar example of the application of this exemption may be found in CEO 79-56.

Accordingly, we find that no prohibited conflict of interest exists where your law firm represents a city housing authority while you serve as a member of the Florida House of Representatives.

QUESTION 3:

Would a voting conflict of interest be created were you to participate in consideration of special or general legislation affecting a city housing authority which is represented in legal matters by a partner or a member of your law firm?

The Code of Ethics for Public Officers and Employees provides in relevant part:

Voting conflicts. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143, F. S.]

Under this provision, a public officer cannot be prohibited from voting in his official capacity on any matter. However, if he has a personal, private, or professional interest in the matter and if the measure being voted upon would inure to his special private gain or the special gain of a principal by whom he is retained, the officer is required to file a memorandum of voting conflict.

Applying the circumstances you have described to the disclosure requirement discussed above, we are of the view that you would have a "professional interest" in legislation directly affecting a client of your law firm. In a previous advisory opinion, CEO 77-129, we advised that whether a measure inures to the "special" gain of an officer or his principal will turn in part on the number of persons who stand to benefit from the measure. Where the class of persons is large, a "special" gain will result only if there are circumstances unique to the officer or principal under which he or the principal would stand to gain more than the other members of the affected class. We are of the opinion that, if you vote upon general legislation which would affect all city and county housing authorities, there would be no "special" gain to a principal by whom you are retained, which would be the particular city housing authority which is represented by your law firm. However, if you vote upon special legislation, for example, a special legislative act relating only to the Tampa Housing Authority and inuring to the benefit of that Authority, that legislation would inure to the special gain of a principal by whom you are retained.

Accordingly, we find that a voting conflict of interest would be created were you to participate in consideration of special legislation affecting in particular the Tampa Housing Authority, which is represented in legal matters by your law firm. The existence of such a voting conflict of interest, if one occurs, should be disclosed on CE Form 4, Memorandum of Voting Conflict, filed with the person responsible for reporting the minutes of the meeting. On the other hand, we find that no voting conflict of interest would be created were you to participate in consideration of general legislation affecting all housing authorities in a similar manner.