CEO 82-12 -- March 4, 1982

CONFLICT OF INTEREST

STATE ATTORNEY ORGANIZING AND SERVING AS DIRECTOR OF BANK

To: Mr. Stephen L. Boyles, State Attorney, Seventh Judicial Circuit

SUMMARY:

No prohibited conflict of interest would be created were a State Attorney to organize and serve as a director of a federally chartered bank located within the judicial circuit which he serves. It is anticipated that the bank would become a complainant in criminal matters approximately two or three times each year, and that where the bank is a complainant, an outside State Attorney should be assigned by the Governor pursuant to Chapter 27, Florida Statutes. Under these circumstances, the State Attorney's interest in the bank would not be in such substantial conflict with the proper discharge of his duties that a continuing or frequently recurring conflict of interest would be created or that the full and faithful discharge of public duties would be impeded, in violation of Section 112.313(7), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created were you, a State Attorney, to organize and serve as a director of a federally chartered bank located within the judicial circuit which you serve?

Based upon the information you have provided, we answer your question in the negative.

In your letter of inquiry you advise that as State Attorney, you are responsible for prosecuting all violations of criminal law which occur in your judicial circuit, as well as for representing the State in several civil areas. You also advise that you and nine other persons propose to organize and operate as directors a federally chartered, national bank within the judicial circuit which you serve. You question whether a prohibited conflict of interest would be created in that the bank could, or would likely, become the complainant in criminal actions concerning the removal or sale of property under lien, false statements in obtaining loans, embezzlement, robberies, and possibly others. You assume that you would be disqualified to act as State Attorney when the bank is the complainant, thus necessitating assignment of an outside State Attorney by the Governor pursuant to Chapter 27, Florida Statutes. Finally, you advise that another bank which covers the same geographical area of your proposed bank has been the complainant in criminal actions approximately two to three times per year, involving sales of property under lien and forgeries.

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. (1981).]

The first portion of this provision prohibits you from having any employment or contractual relationship with a business entity which is doing business with, or is subject to the regulation of, your agency. From the information you have provided it does not appear that your office would either regulate or do business with your proposed bank.

The second portion of this provision prohibits you from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of your public duties. In interpreting this provision of the Code of Ethics, we are guided by the intent of the Legislature as expressed in Section 112.311, Florida Statutes. Particularly, we note that Section 112.311(5) provides as the policy of the State that no public officer shall have any interest "which is in substantial conflict with the proper discharge of his duties in the public interest." In addition, Section 112.311(2) provides in part:

Public officials should not be denied the opportunity, available to all citizens, to acquire and retain private economic interests except when conflicts with the responsibility of such official to the public cannot be avoided.

Under the circumstances you have presented, it does not appear that a continuing conflict of interest would be created, as there would not be a constant involvement between the bank and the State Attorney's office. Nor would a frequently recurring conflict of interest be created if the bank were a complainant only two or three times each year. As the legislative intent indicates, not all private economic interests which give rise to a conflict of interest are prohibited by the Code of Ethics; rather, the Code is directed at those which present a substantial conflict with the proper discharge of public duties. Under the circumstances you have presented we are unable to conclude that there is such a substantial conflict of interest that you should be prohibited from involvement with the bank. Furthermore, we are reluctant to interpret the Code of Ethics in a manner which might prohibit a State Attorney from economic involvement in virtually all types of businesses. For example, if a prohibited conflict of interest were found here we question whether a State Attorney could own an interest in a retail store, where it might be expected that his office would be involved in prosecuting cases of shoplifting and issuing worthless checks.

Accordingly, we find that no prohibited conflict of interest would be created were you to organize and serve as a director of a federally chartered bank located within the jurisdiction of your office. In reaching this conclusion, however, we do not foreclose the possibility that your interest in the bank might at some time present a more significant conflict of interest, if there were to be a substantial increase in the frequency of criminal cases involving your bank over the number of cases cited in this opinion. We would suggest that you seek another opinion in the event that this happens.