CEO 76-197 -- October 25, 1976

CONFLICT OF INTEREST

PART-TIME LEGISLATIVE EMPLOYEE PRIVATELY REPRESENTING COURT CLERK

To: Phil Blank, Executive Assistant to the House Majority Leader, Tallahassee

Prepared by: Bonnie Johnson

SUMMARY:

No prohibited conflict of interest is created where a part-time legislative employee privately represents, as an attorney, a circuit court clerk, so long as the contract stipulates that such representation shall not be to the Legislature or for the purpose of influencing any legislative decisions. Although Florida Statute s. 112.313(7)(a)(1975) precludes a public employee from holding private employment or contractual relationships with an agency subject to the regulation of the employee's agency, subparagraph 2. of that provision exempts such employment where the employee's agency is a legislative body and the regulatory power over the other agency is strictly through the enactment of laws. Where such representation began prior to the employee's moving to part-time status, he was required by s. 112.3141(2) to have the prior written permission of the presiding officer of the house by which he is employed in order to engage in such representation during regular working hours.

QUESTION:

Would there be a prohibited conflict of interest under part III, Ch. 112, F. S., were I to work for the Legislature on a part-time basis and privately represent, as an attorney, a circuit court clerk pursuant to the limitations imposed by the enclosed contract?

Your question is answered in the negative.

It is our understanding, based on your letter of inquiry and additional information provided our staff by your attorney, that on July 30, 1976, pursuant to guidelines promulgated by the speaker's office, you formally requested permission from Speaker Tucker to engage in the practice of law for a period not to exceed 10 hours weekly. Speaker Tucker approved your request on or about August 5, 1976. On September 10, 1976, Representative John Ryals, Chairman of the House Administration Committee, transmitted to the Joint Legislative Management Committee the Report of Personnel Action implementing Speaker Tucker's approval. The effective date for your change to part-time employment is August 9, 1976.

On July 29, 1976, you entered into a contract with Mr. Paul Hartsfield "for the purpose of rendering legal assistance with regard to the Client's [Hartsfield's] duties and responsibilities as Clerk of the Circuit Court, Leon County, Florida." The contract further provides that the agreement "shall not include representation to the Legislature of the State of Florida, either personally or through correspondence[;] nor shall it be intended to influence any legislative decisions."

The Code of Ethics for Public Officers and Employees provides in relevant part as follows:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. --(a) 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 is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties.

* * * * *

2. When the agency referred to is a legislative body and the regulatory power over the business entity resides in another agency, or when the regulatory power which the legislative body exercises over the business entity or agency is strictly through the enactment of laws or ordinances, then employment or a contractual relationship with such business entity by a public officer or employee of a legislative body shall not be prohibited by this subsection or be deemed a conflict. [Fla. Stat. s. 112.313(7)(a)2.(1975); emphasis supplied.]

Accordingly, a public employee is prohibited from having a contractual relationship with an agency subject to the regulation of or doing business with his public agency. In our view, transactions between governmental agencies do not constitute "doing business" within the contemplation of the above-quoted statute. See CEO 76-2, question 9. Further, as the Legislature regulates strictly through the enactment of laws, the exemption contained in the italicized language above applies to you as a legislative employee. Consequently, no violation of s. 112.313(7) is constituted by your representation of the circuit court clerk under the conditions described above.

However, the Code of Ethics further provides as follows:

No full-time legislative employee shall be otherwise employed during the regular hours of his primary occupation, except with the written permission of the presiding officer of the house by which he is employed, filed with the Clerk of the House of Representatives or with the Secretary of the Senate, as may be appropriate. Employees of joint committees must have the permission of the presiding officers of both houses. This section shall not be construed to contravene the restrictions of s. 11.26. [Fla. Stat. s. 112.3141(2)(1975).]

Although you specifically inquire as to the propriety of your representing a client while a part-time employee of the Legislature, we note that the contract with the circuit court clerk bears an effective date of August 1, 1976. As your part-time status was retroactive to August 9, 1976, the provisions of the above-quoted s. 112.3141(2) were applicable to you during that 9-day period.

Relative to your working hours while a full-time employee of the House of Representatives, your attorney has advised us as follows:

While a full-time employee of the House, Mr. Blank, like other employees, worked a minimum 40 hour week. The normal working hours for House employees are 8:00 A.M. to 5:00 P.M. with, of course, an hour off for lunch. The lunch hour may be taken at the discretion of the employee. In addition, practically speaking, an employee may work 9 or 10 hours one day and 6 or 7 the next based on personal needs and the particular requirements of the job and his supervisor. Moreover, the lunch hour probably is not taken consistently at the same time, and would not be deemed a regular working hour.

To the best of Mr. Blank's recollection, he did not perform any work pursuant to his contract with the Clerk of the Circuit Court during regular working hours.

As suggested above, your position is not bound by an established work day, although the "normal working hours" are from 8:00 A.M. to 5:00 P.M., less one hour for lunch, taken at your convenience and discretion. The question thus turns on an interpretation of what constitutes "regular working hours" for one who has no established work day.

As cited in 36A Words and Phrases, page 241, the term "regular" derived from "regula," meaning "rule," and its first and legitimate signification, according to Webster, is "conformable to a rule; agreeable to an established rule, law, or principle, to a prescribed mode, or according to established, customary forms." Myers v. Rashback, N. Y., 4 How. Prac. 83, 85. The term is defined further as follows:

In common usage a practice is often spoken of as "regular" although not always followed, and the word admits of occasional variation. France v. Munson, 3 A.2d 78, 81, 125 Conn. 22.

The term "regular" thus would appear to approximate "normal" in that it connotes a standard which is subject to variation. It would therefore follow that the regular working hours of an employee of the Legislature are 8:00 A.M. to 5:00 P.M. Also, to deem one's regular working hours to be those hours actually worked would obviate logic relative to the provisions of s. 112.3141(2). Clearly, it was not intended that a legislative employee be authorized to transact private business for personal gain during the time he is being compensated by the state for performance of his public duties. To do so, in fact, would constitute a violation of s. 112.313(6), as he would be corruptly using a resource (state time) within his trust for special benefit to himself.

We therefore are persuaded that "regular working hours" must be read as analogous to the "normal working hours" described in your attorney's correspondence, i.e., 8:00 A.M. to 5:00 P.M., less the employee's lunch hour. Florida Statute s. 112.3141(2) accordingly requires that where a full-time legislative employee engages in private employment during these hours, presumably while on compensatory time or personal leave, he must have the prior written permission of the presiding officer of the house by which he is employed.