CONFLICT OF INTEREST

STATE AGENCY GENERAL COUNSEL'S PRIVATE COMPANY
CONTRACTING WITH LAW SCHOOL

To:        Colin M. Roopnarine, Tallahassee

SUMMARY:

Section 112.313(7)(a), Florida Statutes, would not prohibit a company owned by a general counsel of a State executive branch agency from contracting with a law school to develop and sell educational materials and also to organize and present continuing legal education programs for which the law school would provide marketing and hosting services. CEO 77-132 is referenced.¹

QUESTION:

Would a prohibited conflict of interest be created if a company owned by a general counsel of a State executive branch agency were to contract with a state university's college of law to develop and sell educational materials and to organize and present continuing legal education programs for which the law school would provide marketing and hosting services?

Under the circumstances presented, your question is answered in the negative.

In your letter and subsequent email, you state that you are employed by the Florida Office of Financial Regulation ("OFR") as the agency's general counsel and, in that position, you have the following responsibilities:

• Advising the commissioner, deputy commissioner, and all policymakers within OFR on legal issues;

• Providing support as to active or potential legal matters for OFR;

• Providing support on OFR personnel and legislative matters; and

• Serving as chief ethics officer for OFR.

You state that you presently also work as an adjunct professor (independent contractor) at a state university's college of law ("the law school") teaching courses on practical lawyer advocacy skills, and that prior to entering into this relationship you obtained approval from OFR to work in such a capacity.² You relate that, in light of interest expressed by personnel at the law school, you and a general counsel for another State agency propose to form a company whose business purpose would be to educate law students, through development and sales of textbooks and lecture materials, and to provide continuing legal education ("CLE") programs to lawyers. You state that the proposed CLE programs would be hosted by the law school, which has appropriate facilities and infrastructure to market and conduct CLE programs for its alumni as well as other members of the Florida Bar. You relate that the proposed educational materials and CLE programs would focus on civil, administrative, and criminal trial advocacy issues, including discovery, trial preparation and substantive areas of the law. The CLE programs would require approval by the Florida Bar. You explain that none of the educational materials or programs offered by your company would focus on issues or topics related to OFR and would include no information as to litigation or other interactions with or against OFR. You further state that you would not use for your law school work any OFR resources, including your time on the job as general counsel, and that you would not market or sell educational materials to personnel at OFR. You ask what, if any, Code of Ethics restrictions would apply if your company were to enter into this proposed arrangement with the law school.

Your scenario implicates Section 112.313(7)(a), Florida Statutes,³ which states:

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.

The first part of this provision would prohibit you from having any employment or contractual relationship with a business entity or agency that is regulated by or is doing business with your agency. We find that your public "agency," for purposes of this provision of the Code of Ethics, is OFR.⁴

However, you state that OFR has no regulatory authority over the university or the law school and no contracts with the university or the law school. Therefore, we find that your relationship with the law school would not create a prohibited conflict under the first part of Section 112.313(7)(a), Florida Statutes.

The second part of Section 112.313(7)(a) prohibits any employment or contractual relationship that would give rise to an actual conflict of interest. Thus, the relevant issue would be whether your relationships concerning the law school would create a continuing or frequently recurring conflict or would impede the full and faithful discharge of your duties as OFR general counsel. You state that your responsibilities in the two positions would not overlap since OFR personnel, including lawyers, would not purchase your educational materials or participate in CLE programs produced by your company and you would not use OFR resources for the law school work. Thus, we do not find that you would have a conflict of interest under the second part of Section 112.313(7)(a) were you to hold both positions.

Accordingly, we find that your company's prospective contractual relationship with the law school to provide educational materials for your classes and also to produce CLE programs for lawyers, as well as your adjunct professor contract, are not and would not be conflicting under Section 112.313(7)(a), Florida Statutes, where you also are employed as OFR general counsel.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 7, 2014, and RENDERED 12th day of March, 2014.

____________________________________

Morgan R. Bentley, Chairman

^[1] Opinions of the Commission on Ethics may be obtained from its website www.ethics.state.fl.us.

^[2] In CEO 77-132, we found that an adjunct professor is an independent contractor, not an employee.

^[3] Section 112.313(3), Florida Statutes, would not be at issue since you would not be acting in a private capacity to sell your materials or services to OFR (your public "agency"). Also, neither the university nor the law school would be your "agency" because, as an independent contractor adjunct professor, you would not be an officer or employee of either entity.

^[4] The term "agency" is defined in pertinent part as "any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative." Section 112.312(2), Florida Statutes.