CEO 75-177 -- August 26, 1975

CONFLICT OF INTEREST

STATE REPRESENTATIVE ACTING AS ATTORNEY FOR STATE AGENCY

To: James H. Thompson, Representative, 10th District, Quincy

Prepared by: Gene Rhodes

SUMMARY:

No conflict of interest exists under the Code of Ethics where a state representative occasionally represents in his private capacity as an attorney the Division of Family Services of the Department of Health and Rehabilitative Services. A conflict would exist under s. 112.313(5), F. S. (1974 Supp.), only where outside employment creates a continuous or frequently recurring conflict between one's private interests and public duties. Voting conflicts of interest could arise out of such employment, however, in which case the public officer would be bound by s. 112.3141, F. S., providing for the disclosure of such voting conflict whether or not one chooses to abstain from voting.

QUESTION:

Does a conflict of interest exist when I, as a state representative and a practicing lawyer, occasionally represent the Division of Family Services of the Department of Health and Rehabilitative Services?

Your question is answered in the negative.

Your letter of inquiry advises us that during the past 2 or 3 years you have occasionally represented the Division of Family Services in obtaining permanent commitment of abandoned or neglected children in your locale so they may be made available for adoption. The maximum fee allowable for this service is regulated by the agency.

The Code of Ethics states, in relevant part, that an officer or employee of an agency may not "accept other employment that will create a conflict between his private interests and the performance of his public duties, or will impede the full and faithful discharge of his public duties." Section 112.313(5), F. S. (1974 Supp.).

This subsection might seem to have possible application to you. It is our view, however, that the above-quoted portion of subsection (5) is applicable only in those instances in which the nature or scope of the accepted employment creates a continuous or constantly recurring conflict between one's private interests and his public duties. In such a case the employment is a conflict per se and is prohibited by this subsection. A revision of the above-quoted portion of subsection (5) [see s. 112.313(7), Ch. 75-208, Laws of Florida] will take effect October 1, 1975. This revision is consistent with our opinion as contained herein.

Although we find none of the conflict provisions of s. 112.313 applicable to the facts you have described, there could be situations in which a voting conflict would arise in your capacity as a state representative. For this reason you should be aware of the code's provision regarding voting conflicts, which states:

No public officer shall be prohibited from voting on any matter in his official capacity. However, when the matter being considered directly or indirectly inures to the public officer's particular private gain, as opposed to his private gain as a member of a special class or creates a conflict between such officer's private interests and his public duties he may abstain from voting on the matter and shall file a statement explaining the conflict with the appropriate officials. [Section 112.3141, F. S.]

Thus, under no circumstances would you be prohibited from voting; but if for any reason you feel that a conflict exists, you may voluntarily abstain from voting and you are required to file a statement explaining the conflict. The proper statement would be Ethics Commission Form 4; a copy should be filed with the Commission on Ethics and a copy with the body of which you are a member. After October 1, 1975, the revised Code of Ethics will require that you file a memorandum with the person responsible for recording the minutes of the meeting at which the voting conflict occurs within 15 days after the vote in lieu of filing Form 4 with the Ethics Commission. Section 112.3143, F. S., as created by Ch. 75-208, Laws of Florida.