CEO 79-52 -- September 6, 1979

CONFLICT OF INTEREST

SPOUSE OF PUBLIC DEFENDER EMPLOYED AS OFFICIAL COURT REPORTER

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

Prepared by: Phil Claypool

SUMMARY:

Only two provisions of the Code of Ethics for Public Officers address the activities of a spouse of a public officer or employee, s. 112.313(3) and (4), F. S. However, neither of these provisions prohibits the wife of a public defender from being employed as a court reporter in the same judicial circuit.

QUESTIONS:

1. Would a prohibited conflict of interest be created were I to serve as Public Defender for the Ninth Judicial Circuit while my wife is employed by Orange County as an official court reporter for the Ninth Judicial Circuit?

2. Would a prohibited conflict of interest be created were I, the wife of the Public Defender for the Ninth Judicial Circuit, to be employed by Orange County as an official court reporter for the Ninth Judicial Circuit?

Question 1 is answered in the negative.

In your letter of inquiry you advise that you were appointed as Public Defender for the Ninth Judicial Circuit effective January 1, 1979, prior to which time you had served in that circuit as an assistant public defender. You also advise that your wife has been employed as an official court reporter for the Ninth Judicial Circuit since 1973 and recently has been on leave from that position. She now wishes to return to her position as an official court reporter. As an official court reporter, your wife would be assigned to record criminal proceedings of clients represented by the Office of the Public Defender for the Ninth Judicial Circuit, although she would not record proceedings on cases represented by you, personally.

You further advise that as public defender you are responsible for administering an office consisting of approximately 20 assistant public defenders and other employees. Your official duties primarily consist of representation of indigent persons charged with criminal offenses at the trial level and, to a lesser extent, at the appellate level. Chapter 27, F. S. If a client desires an appeal of his case, you advise, after a finding of insolvency by the court an assistant public defender from your office normally prepares the initial appellate papers. The case on appeal generally is handled by the Office of the Public Defender for the Fifteenth Judicial Circuit, although in some cases an assistant public defender from your office would prepare the entire appeal.

In addition, you advise that the official court reporters for Orange County operate under a unique system in the State of Florida. There are seven official reporters, each of whom serves at the pleasure of the chief judge of the circuit and under the immediate supervision of the court administrative assistant's office. Each reporter is salaried by Orange County, with a supplement from the state to provide reporting services on a full-time basis for all circuit court criminal proceedings. The official court reporters are allowed to do no free-lance work depositions and do not receive per diem. The reporters operate under a regular rotation schedule among the criminal court circuit judges, which schedule is prepared by the administrative assistant's office months in advance, with reporters being assigned to each court for a 1-week period.

Procedurally, you advise, if an assistant public defender, in the preparation of a case or trial, desired a transcript of proceedings, he would file a motion with the appropriate court. If the court granted his motion (upon a showing of necessity), the official court reporter who recorded the proceedings would prepare the transcript. If a client desired an appeal, the court would first make a determination of insolvency before the public defender's office would be assigned for appellate purposes. The assistant public defender then would move the court for an order to transcribe the trial proceedings, and the official court reporter who recorded the proceedings then would prepare the transcript. Payment for the transcripts is made by the Board of County Commissioners for Orange County after bills have been approved by the Circuit Judge and the administrative assistant, with the rate of payment being set by the circuit judges.

Section 112.313(3) and (4) is the only section of the Code of Ethics for Public Officers and Employees which specifically deals with a public officer or employee vis-a-vis the activities of his or her spouse:

(3) DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest . . . .

(4) UNAUTHORIZED COMPENSATION. -- No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity.

Neither of these quoted provisions is applicable to the circumstances you have described. Accordingly, we find that no prohibited conflict of interest would be created were you to serve as Public Defender for the Ninth Judicial Circuit while your wife is employed by Orange County as an official court reporter for the Ninth Judicial Circuit. Any questions you may have under these circumstances concerning your professional responsibilities as an attorney should be addressed to The Florida Bar.

In answer to your second question, as an official court reporter employed by a county, we find that you would be a public employee subject to the provisions of the Code of Ethics for Public Officers and Employees. However, neither of the provisions of the Code of Ethics referenced above would prohibit your marriage to the Public Defender for the Ninth Judicial Circuit while being employed by Orange County as an official court reporter for the Ninth Judicial Circuit. Accordingly, your question also is answered in the negative.