CEO 75-155 -- July 9, 1975

FEDERAL OFFICEHOLDERS

APPLICABILITY OF THE CODE OF ETHICS

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

Prepared by: Jeff Trammel

SUMMARY:

Pursuant to s. 112.312(7)(a), F. S. (1974 Supp.), elected congressional officers are deemed to be public officers subject to the provisions of the Code of Ethics. In the absence of a designated procedure for the filing of complaints against federal officeholders and candidates for federal office, such complaints should be filed with the Commission on Ethics, which would process any complaint in accordance with statutory procedures. Should a violation of the Code of Ethics be found after a full and final investigation by the commission, a penalty prescribed by s. 112.317(1)(a) or (c), F. S., as created by Ch. 75-199, Laws of Florida, would be recommended by the commission to either the United States Senate or House of Representatives, the two bodies having the authority to remove their members from office.

QUESTIONS:

1. Are the members of the Florida delegation to the United States Congress subject to Florida's Code of Ethics for Public Officers and Employees?

2. Should complaints of violations of the Code of Ethics by elected federal officeholders representing Florida in Congress, or candidates for such office, be filed with the Commission on Ethics?

3. What penalties may be imposed upon Florida's elected federal officeholders who are shown to be in violation of the Code of Ethics?

Question 1 is answered in the affirmative.

The Florida Legislature explicitly enumerated members of the United States Congress in its definition of the term "public officer," s. 112.312(7)(a), F. S. (1974 Supp.):

All elected public officers, congressional, executive, judicial, legislative, state, county, municipal or local. (Emphasis supplied.)

Since these public officers are subject to the Code of Ethics, part III, Ch. 112, F. S. (1974 Supp.), we believe that federal officeholders must comply with the code's requirements.

Although the Code of Ethics fails to specify procedures for receiving complaints or taking punitive action relative to congressional officeholders, these defects do not vitiate the mandate of this law that you, as public officers, be in accord with these guidelines.

The responsibility entrusted in public officers requires that they heed not merely the law's technical interpretation, but, more importantly, the end it contemplates. Since the Legislature's design was for the Florida congressional delegation to adhere to the Code of Ethics, we are of the opinion that each of you must effectuate compliance with Ch. 112, F. S. (1974 Supp.).

Question 2 is answered in the affirmative.

In the absence of a designated procedure for receiving complaints against federal officeholders and candidates for federal office, we are of the opinion that such complaints should be filed with the Commission on Ethics. The commission will then process the complaint in accordance with statutory procedures.

As to question 3, under the revised law, which passed the 1975 Legislature and takes effect on July 1, 1975, the following procedure is actuated once the commission receives a sworn complaint:

A preliminary investigation shall be undertaken first by the commission to determine if the facts alleged in the complaint constitute probable cause to believe that a violation has occurred. If, upon completion of the preliminary investigation, the commission finds no probable cause to believe that this part has been violated, the commission shall dismiss the complaint and the complaint, unless prohibited by subsection (3) below, shall become a matter of public record, together with a written statement of the findings of the preliminary investigation and a summary of the facts, which the commission shall send to the complainant and the alleged violator. If the commission finds from the preliminary investigation probable cause to believe that this part has been violated, it shall so notify the complainant and the alleged violator in writing. Such notification and all documents made or received in the disposition of the complaint shall then become public records. Upon request submitted to the commission in writing, any person who the commission finds probable cause to believe has violated any provision of this part shall be entitled to a public hearing. Such person shall be deemed to have waived the right to public hearing if the request is not received within 14 days following the mailing of the probable cause notification required by this subsection. However, the commission may on its own motion require a public hearing, and may conduct such further investigation as it deems necessary. [Section 112.324(2).]

Section 112.324(4) further provides:

If . . . upon completion of a full and final investigation by the commission, the commission finds that there has been a violation of this part, it shall be the duty of the commission to report its findings and recommend appropriate action to the proper disciplinary official or body as follows, and such official or body shall have the power to invoke the penalty provisions of this part[.]

In the case of members of the United States Senate and House of Representatives, those two bodies respectively have the authority to remove members from office. U. S. Constitution, Art. I, s. 5. Therefore, the commission would be compelled to investigate the federal officeholder's activities and submit a report of its findings to the appropriate committees of the Congress.

Penalties which may be imposed upon public officers found to be in violation of the code are specified in s. 112.317 of the new law:

(1) Violation of any provision of this part including, but not limited to, any failure to file any disclosures required by this part, or violation of any standard of conduct imposed by this part, in addition to any criminal penalty involved, shall, pursuant to applicable constitutional and statutory procedures, constitute grounds for, and may be punished by one or more of the following:

(a) In the case of a public officer:

1. Impeachment;

2. Removal from office;

3. Suspension from office;

4. Public censure and reprimand;

5. Forfeiture of no more than one-third salary per month for no more than 12 months;

6. A civil penalty not to exceed $5,000; or

7. Restitution of any pecuniary benefits received because of the violation committed.

Section 112.317(1)(c) further provides that:

In the case of a candidate who violates the provisions of s. 112.3145, disqualification from being on the ballot.

The State of Florida requires certain qualifications of those who are candidates for public office. Chapter 99, F. S. One of these requisites is that the candidate be "qualified under the laws of Florida to hold office for which he desires to be nominated." Section 99.021(1)(a). We are of the opinion that contravention of the Florida Code of Ethics by a federal officeholder would subject a Congressman or United States Senator to one or more of the penalties set forth above.