CEO 77-17 -- February 17, 1977

CONFLICT OF INTEREST

NEWLY ELECTED OFFICER INTERVIEWING FOR REPLACEMENT IN PRESENT JOB

To: Robert E. Lockwood, Clerk, Circuit Court, Pompano Beach

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(7)(a), F. S. 1975, prohibits a public officer or employee from holding any employment which creates 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. This provision is not deemed to be violated, however, where a newly elected officer continues to search for a replacement for his former job after assuming his public duties, so long as the search is undertaken during his off-duty hours and is not so time-consuming as to lead to neglect of duty pursuant to s. 5(b), Art. II, State Const., and as defined by the Supreme Court of Florida in State ex rel. Hardie v. Coleman, 155 So. 129, at 132 (Fla. 1934).

QUESTION:

Would a prohibited conflict of interest exist were I, a newly elected clerk of the circuit court, to continue to seek a replacement for my present job after I have assumed office?

Subject to the guidelines and restrictions that are set out below, your question is answered in the negative.

In your letter of request you have stated that you have been elected as the Clerk of the Circuit Court for Broward County. After you take office, you wish to continue your search for someone to replace you in your present position in private industry through breakfast and luncheon appointments, during evenings, and on weekends.

The Code of Ethics for Public Officers and Employees provides:

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 . . . ; 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. [Section 112.313(7)(a), F. S. 1975; emphasis supplied.]

This provision prohibits a public officer from having an employment or contractual relationship that would impede the full and faithful discharge of his public duties.

In our view, it is possible that a public officer might have an obligation which would take up so much of his time that he would not be able to fully and effectively discharge his public duties. This is in accordance with the Florida Constitution, s. 5(b), Art. II of which requires each county officer to "devote personal attention to the duties of the office," and which empowers the Governor to suspend any county officer for neglect of duty.

The above-quoted provision of s. 5(b), Art. II, State Const., was taken from s. 17, Art. XVI, State Const. 1885, which stated:

No person shall hold any office of trust or profit under the laws of this State without devoting his personal attention to the duties of the same.

This provision was construed by the Attorney General in AGO 057-266, September 5, 1957, as follows:

County officers may, openly and under their own names engage in private business only when they are able, notwithstanding such business operation, to devote their personal attention to the duties of their office and where, by reason of operation of such a business, a public officer cannot or does not devote his personal attention to the duties of his office, there will be a neglect to perform the duties of his office within purview of the constitution.

The Supreme Court of Florida has interpreted "neglect of duty" as follows:

Neglect of duty has reference to the neglect or failure on the part of a public officer to do and, perform some duty or duties laid on him as such by virtue of his office or which is required of him by law. It is not material whether the neglect be willful, through malice, ignorance, or oversight. State ex rel. Hardie v. Coleman, 155 So. 129, at 132 (Fla. 1934).

We have found no law which requires a public officer to spend a specified amount of time or to work during set hours in order to fulfill the duties of his office. So long as those duties are performed properly, the requirements of the Constitution and the Code of Ethics are met.

As you have stated that you only wish to interview through breakfast and luncheon appointments, during evenings, and on weekends, we feel that the full and faithful discharge of your public duties will not be impeded. Accordingly, we find that no prohibited conflict of interest would exist were you to continue to seek a replacement for your present job while serving as clerk of the circuit court.