CEO 77-13 -- February 1, 1977

CONFLICT OF INTEREST

STATE REPRESENTATIVE LEASING PROPERTY TO DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

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

Prepared by: Bonnie Johnson

SUMMARY:

A legislator may not be deemed to be doing business with his own agency in violation of s. 112.313(3), F. S. 1975, where he leases property to a state department, inasmuch as the legislator's agency is the Florida Legislature pursuant to the definition of the term "agency." See s. 112.312(2), F. S. (1976 Supp.). Nor is such leasing of property in violation of s. 112.313(7)(a), as subparagraph 2. therein provides an exemption where the officer's agency is a legislative body which regulates the other agency strictly through the enactment of laws.

QUESTION:

Would a prohibited conflict of interest exist were I, a state representative, to lease property to the Department of Health and Rehabilitative Services?

Your question is answered in the negative.

In your letter of request you have stated that you are a member of the Florida House of Representatives. You have also stated that you own and lease various business properties, one of which is a building located near various governmental offices in downtown ____, Florida. Representatives of the Department of Health and Rehabilitative Services have contacted you and other property owners in ____ regarding possible lease of office space to the department. Because the office space required will exceed 5,000 square feet, the Department of General Services will advertise for bids before any lease will be signed. The Code of Ethics for Public Officers and Employees provides in relevant part:

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. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), F. S. 1975.]

This provision prohibits a public officer acting in his official capacity from leasing any realty for his own agency from any business entity of which he is an officer, partner, director, or proprietor or in which he has a material interest. The provision also prohibits a public officer acting in a private capacity from leasing any realty to his own agency, if he is a state officer.

As a state representative, your agency is the Florida Legislature, according to the definition of "agency" contained in s. 112.312(2), F. S. (1976 Supp.). Since the proposed lease would be between you and the Department of Health and Rehabilitative Services rather than between you and your agency, the above-quoted provision does not apply.

The Code of Ethics further provides 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 . . . ; 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. [Section 112.313(7)(a)2., F. S. 1975.]

This provision prohibits a public officer from having a contractual relationship with an agency which is subject to the regulation of his agency. Were you to enter into a lease with the Department of Health and Rehabilitative Services you would have a contractual relationship with an agency which is subject to the regulation of the Legislature. However, s. 112.313(7)(a)2., quoted above, provides a limited exception to this prohibition where the officer's agency is a legislative body and the regulatory power which that body exercises over the regulated agency is strictly through the enactment of laws.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit your leasing office space to the Department of Health and Rehabilitative Services while you are serving as a state representative.