CEO 74-70 -- November 25, 1974

DISCLOSURE LAWS

APPLICABILITY TO HEARING EXAMINERS FOR THE DEPARTMENT OF POLLUTION CONTROL

To: James R. Brindell, Administrator, Environmental Law Section, Department of Pollution Control, Tallahassee

Prepared by: Gene L. "Hal" Johnson

SUMMARY:

The definition of "public officer" set forth in s. 112.312(7)(c), F. S., as amended by Ch. 74-177, Laws of Florida, expressly mentions hearing examiners for any agency; no exclusion is made on the basis of pro bono service. Further, the Department of Pollution Control is within the definition of the term "agency" as set forth in s. 112.312(1), F. S. Therefore, hearing examiners of the Department of Pollution Control are public officers subject to applicable provisions of part III, Ch. 112, F. S. As pointed out in CEO 74-69, conflict of interest prohibitions set forth in s. 112.313(5), F. S., are intended to prevent recurrent situations of conflict per se or conflict between a public officer's private interests and public duties. Such circumstances are not evident when members of a law firm of a hearing examiner for the Department of Pollution Control represent clients who might in some instances be regulated by the Department of Pollution Control.

QUESTIONS:

1. Are the hearing examiners of the Department of Pollution Control, who serve voluntarily without pay, public officers within the definition of s. 112.312, F. S., as amended by Ch. 74-177, Laws of Florida, and thus subject to the disclosure requirements of the law?

2. Does a conflict of interest exist under provisions of s. 112.313(5), F. S., as amended by Ch. 74-177, Laws of Florida, when a hearing examiner for the Department of Pollution Control is a member of a law firm which represents clients who might in some instances be subject to the regulation of the Department of Pollution Control?

Question 1 is answered in the affirmative.

Hearing examiners come within the express definition of s. 112.312(7)(c), F. S., which states that the term "public officer" includes: "Referees, receivers, and hearing examiners appointed by any agency, and judges of industrial claims." (Emphasis supplied.) The language of the statute expressly includes all hearing examiners, regardless of the agency which appoints them. If the Legislature had intended to exclude those examiners who were serving pro bono from the requirements of the act, it would have expressly stated the exclusion in the body of the statute. In the absence of any such exclusion, the scope of s. 112.312(7)(c) applies to hearing examiners who serve with pay as well as those who serve without.

The term "agency" as defined in the Code of Ethics, part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida, includes, "any state, county, local or municipal governmental entity, whether executive, judicial, or legislative, and therein any department . . . ." Section 112.312(1), supra. It is thus apparent that the Department of Pollution Control is an "agency" under the terms of the Code of Ethics. Persons appointed by the department are therefore "public officers" within the meaning of s. 112.312(7)(c) and are subject to disclosure requirements for public officers.

Question 2 is answered in the negative.

Enclosed please find a copy of CEO 74-69 wherein we held that a member of a hearing examiner's law firm could represent clients in nonagency-regulated matters without creating a conflict of interest under s. 112.313(5), supra. While the two situations are distinguishable in that in your situation representation in agency- regulated matters might occur, it is our opinion that the rationale set forth in CEO 74-69 is applicable.

It is therefore our opinion that members of the law firm of a hearing examiner for the Department of Pollution Control may represent clients who might in some instances be regulated by the Department of Pollution Control without creating a conflict of interest under s. 112.313(5), supra.