CEO 81-11 -- February 26, 1981

CONFLICT OF INTEREST

LEGISLATIVE EMPLOYEE RECEIVING FINE ARTS GRANT OR SERVING ON FINE ARTS COUNCIL

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

SUMMARY:

No prohibited conflict of interest under the Code of Ethics for Public Officers and Employees would be created were a legislative employee to apply for or receive a fine arts grant from the Division of Cultural Affairs of the Department of State. Since the regulatory power which the Legislature exercises over the Division is strictly through the enactment of laws, the situation would fall within the terms of an exemption contained in Section 112.313(7)(a)2, F. S. Service by such legislative employee on the Florida Fine Arts Council, on a panel of that Council, or on a county fine arts council would not create a conflict of interest because such service does not constitute employment within the contemplation of Sections 112.313(7) and 112.3141(2), F. S.

QUESTION 1:

Would a prohibited conflict of interest be created were you, a legislative employee of a member of the Florida Senate, to apply for a fine arts grant from the Division of Cultural Affairs of the Department of State?

This question is answered in the negative.

In your letter of inquiry you advise that you are employed as Legislative Secretary for a member of the Florida Senate. You also advise that you are interested in applying for an individual artist grant from the Division of Cultural Affairs of the Department of State. Such grants are awarded by the Division pursuant to Section 265.286, F. S. (Supp. 1980), which authorizes the expenditure of state and federal funds to support various fine arts programs as well as individual artists.

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

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- 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.]

This provision prohibits a public employee from having a contractual relationship with an agency which is subject to the regulation of the agency of which he is an employee. Therefore, this provision would prohibit you from entering into a contract with the Division of Cultural Affairs, a governmental agency which is subject to the regulation of your agency, the Legislature. However, there is a specific, statutory exemption from this prohibition for officers and employees of legislative bodies, as follows:

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.]

Since the regulatory power which the Legislature exercises over the Division of Cultural Affairs is strictly through the enactment of laws, the situation which you propose would fall within the terms of this exemption.

Accordingly, we find that no prohibited conflict of interest would be created were you to apply for a fine arts grant from the Division of Cultural Affairs of the Department of State. Please be advised that in this advisory opinion we have no authority to interpret provisions of law which are not part of the Code of Ethics for Public Officers and Employees. Thus, there may be provisions in the Senate Rules or in the F. S. which would provide additional restrictions on your activities.

Your second question is substantially as follows:

QUESTION 2:

Would a prohibited conflict of interest be created were you, a legislative employee of a member of the Florida Senate, to serve on the Florida Fine Arts Council, on a panel of that Council, or on a county fine arts council?

This question also is answered in the negative.

The Florida Fine Arts Council, which is composed of 15 members appointed by the Secretary of State, is responsible for advising the Secretary of State in matters pertaining to fine arts and in the award of grants for the arts, among other duties. Section 265.285, F. S. (Supp. 1980). Pursuant to Department of State Rule 1C-8.05, F.A.C., the Council has established advisory panels of experts in various artistic endeavors to advise and assist the Council and the Division of Cultural Affairs in the award of fine arts grants. County fine arts councils are authorized to be created in each county of the State by Section 265.32, F. S. (1979), to encourage awareness of and participation in art activities. The members of these councils are to be appointed by the respective Boards of County Commissioners.

The relevant portion of the Code of Ethics for Public Officers and Employees is Section 112.313(7)(a), F. S., quoted above in our response to your first question. As that statute prohibits only certain employment and contractual relationships, we approach your question as asking whether a member of the Florida Fine Arts Council, a member of a panel of that Council, or a member of a County Fine Arts Council may be employed by the Legislature.

Section 112.313(7)(a) prohibits a public officer from being employed by an agency which is subject to the regulation of, or is doing business with, the agency of which he is an officer. However, the Legislature is not subject to the regulation of any of these councils or panels. Nor do we find that the Legislature is doing business with any of these bodies by virtue of any legislative appropriations to them.

In addition, the Code of Ethics provides:

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. [Section 112.3141(2), F. S.]

We find this provision also to be inapplicable because you will not be "employed" as a member of one of the councils or panels you have referenced.

Accordingly, we find that no prohibited conflict of interest would be created were you to serve on the Florida Fine Arts Council, on a panel of that Council, or on a County Fine Arts Council. Again, there may be provisions of law other than the Code of Ethics for Public Officers and Employees which could bear upon your decision, including statutory provisions, Senate Rules, and personnel policies of the Joint Legislative Management Committee. Inquiries concerning the applicability of those provisions should be addressed to the appropriate agencies of the Legislature.