CEO 75-170 -- August 26, 1975

PRIVATE ATTORNEY

APPLICABILITY OF FINANCIAL DISCLOSURE TO ATTORNEY RETAINED BY FLORIDA HOUSE OF REPRESENTATIVES

To: David A. Barrett, Tallahassee

Prepared by: Gene Rhodes

SUMMARY:

Section 112.3145(2), F. S., as created by Ch. 75-196, Laws of Florida, the recently revised financial disclosure law which will take effect on January 1, 1976, requires that "specified employees" make financial disclosure. Further, s. 112.3145(1)(b)1., F. S., defines the term "specified employee" to include "a full-time state employee who serves as counsel or assistant counsel to any state agency . . . ." Where a private attorney contracts with the Florida House of Representatives for legal services, such attorney is an independent contractor rather than an employee of the state. See CEO 74-6. Furthermore, he does not work for the state on a full-time basis. He therefore is not deemed to be a specified employee subject to financial disclosure.

QUESTION:

Am I, as a private attorney retained by the Florida House of Representatives on a part-time basis, required to make financial disclosure pursuant to the recent revisions of the Code of Ethics?

Your question is answered in the negative.

The revised code requires that "specified employees" make financial disclosure, s. 112.3145(2), Ch. 75-196, Laws of Florida. In relevant part, "specified employee" is defined as:

Public counsel created by chapter 350, an assistant state attorney, an assistant public defender, a full-time state employee who serves as counsel or assistant counsel to any state agency, a judge of industrial claims, and a hearing examiner. [Section 112.3145(1)(b)1., supra.]

In this section the term "employee" is crucial. It is our opinion that your relationship with the Florida House of Representatives is that of an independent contractor rather than an employee. The definition of an independent contractor is generally stated as "one who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the product or result of his work." 41 Am. Jur. 2d Independent Contractors s. 1, 1968. The two elements which distinguish an independent contractor from an employee are: The contractor has an independent business or occupation, and the contractor is not subject to the control of the employer as to manner or detail of performance of the contracted work. See CEO 74-6.

Clearly, you meet the two conditions set out above for an independent contractor. As such, you are not in the "employ" of the House of Representatives. Further, you do not work for the state on a full-time basis. Therefore, you are not subject to the disclosure provisions of the revised code.