CEO 88-2 -- February 4, 1988

CONFLICT OF INTEREST

DEPARTMENT OF BUSINESS REGULATION ATTORNEY

CONTRACTING TO WRITE MANUSCRIPT FOR PUBLISHING

COMPANY DOING BUSINESS WITH DEPARTMENT

To: Mr. Karl M. Scheuerman, Staff Attorney, Department of Business Regulation, Tallahassee

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a staff attorney for the Department of Business Regulation to write a manuscript for a publishing company which is doing business with the Department, where the attorney is not responsible for purchasing publications for use by the Department and where the Department only purchases updates for particular publications from the publishing company and the publishing company is the sole source of these updates. Under these circumstances, Section 112.316, Florida Statutes, would apply as the attorney's private endeavor would not interfere with the full and faithful discharge of his public duties. CEO 86-6 is referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, an attorney for the Department of Business Regulation, to contract to write a legal manuscript for a publishing company from which the Department purchases updates for legal publications?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry you advise that you are employed in the Office of the Secretary of the Department of Business Regulation as a staff attorney. You further advise that you are in the process of writing a manuscript for a publishing company. The contract proposed by the publishing company provides that you will be paid $25 per printed page, and you believe that payment to you in the aggregate under the proposed contract would be between $500 and $1,000. In a telephone conversation with our staff you advised that the manuscript will be a summary of declaratory statements concerning condominium law issued by the Bureau of Condominiums within the Division of Florida Land Sales, Condominiums, and Mobile Homes of the Department. You have worked in the area of condominium law at the Department for five years, and all of the materials which you would utilize in writing the manuscript are public records.

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), Florida Statutes (1987).]

This provision prohibits a public employee from having a contractual relationship with a business entity which is doing business with his agency.

The term "agency" is defined in Section 112.312(2), Florida Statutes (1987), as

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.

In previous opinions, we have expressed the view that the legislative intent of this definition was to define an employee's "agency," for purposes of the Code of Ethics, as the lowest departmental unit within which his influence might reasonably be considered to extend. See CEO 77-83. As your position is assigned to the Office of the Secretary of the Department, we find that your "agency" consists of the entire Department.

You advise that the Department has purchased legal publications from the publishing company which are updated on an annual subscription‑type basis. In a telephone conversation with our staff you advised that there were six payments made to the publishing company by your agency during the past year in the amounts of $95.00, $598.50, $402.50, $125.00, $95.00, and $35.00. You advise that your duties as Staff Attorney do not include the purchase of legal or any other publications for use by the Department or its legal section, and that you have never recommended the purchase of a particular publication to anyone charged with purchasing.

The Code of Ethics provides several exemptions to Section 112.313(7)(a), including one where the total amount of a subject transaction is not more than $500. However, that subsection may not apply to all transactions between the Department and the publishing company while you are under contract with the company, as one of the transactions between your agency and the publishing company exceeded that sum. See Section 112.313(12)(f), Florida Statutes. You have inquired as to whether this exemption would be applicable if the total amount paid to you by the publishing company did not exceed $500. In all previous opinions interpreting the exemption of Section 112.313(12)(f) except CEO 82-17, we have applied the $500 exemption to the amount of public funds expended between the business entity and the agency, rather than to the amount of compensation received by the public officer or employee from the business entity. See, for example, CEO 85-25, CEO 85-11, and CEO 84-67. As it appears that the other exemptions of Section 112.313(12) are directed at transactions between one's agency and the private business entity, we hereby revoke CEO 82-17 and conclude that the $500 exemption would not apply to the amount of compensation you receive from the publishing company. Thus, the situation about which you inquire may violate Section 112.313(7)(a).

Another provision within the Code of Ethics contains an exemption where

[t]he business entity involved is the only source of supply within the political subdivision of the officer or employee and there is full disclosure by the officer or employee of his interest in the business entity to the governing body of the political subdivision prior to the purchase, rental, sale, leasing, or other business being transacted. [Section 112.313(12)(e), Florida Statutes (1987).]

This exemption requires that the business entity involved is the sole source of supply within the political subdivision. The term "political subdivision" is defined by Section 1.01(9), Florida Statutes, to include "counties, cities, towns, villages, special tax school districts, and all other districts in this state." Therefore, we are of the view that by its terms this exemption may not be applied in cases pertaining to business conducted by a State agency.

However, the Code of Ethics also provides:

Construction. ‑‑ It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his duties to the state or the county, city, or other political subdivision of the state involved. [Section 112.316, Florida Statutes (1987).]

This provision mandates that the Code of Ethics not be construed to prohibit a public employee from engaging in private pursuits which do not interfere with the full and faithful discharge of his public duties. One of the fundamental purposes of Section 112.313(7)(a) is to prohibit those situations in which a public officer or employee could obtain preferential treatment from, or award public business to, a business entity with which he is associated. Thus, we have interpreted Section 112.316 to apply to situations in which an employee is not in a position to give advice or recommendations regarding any business transacted between his agency and a business entity.

We are of the opinion that Section 112.316 would be applied appropriately in your situation. Here, the only business conducted between the Department and the publishing company consists of the purchase of updates for particular publications, and the publishing company is the only source of updates for these volumes. We note further that, although you may be in a position to give advice or recommendations regarding the purchasing of legal publications, you have advised that your duties as staff attorney do not include the purchase of any publications and that you have not recommended the purchase of a particular publication to anyone charged with purchasing. Under these circumstances, we conclude that your relationship with the publishing company would not interfere with the full and faithful discharge of your responsibilities as a staff attorney with the Department.

We do not find that any other provision of the Code of Ethics would prohibit this endeavor. In particular, Section 112.313(8), Florida Statutes, provides:

DISCLOSURE OR USE OF CERTAIN INFORMATION. ‑‑ No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity.

We note that you have advised that any information gained through your position and used in the manuscript would be limited to official public records. In a previous case, we found that an assistant public defender who wrote a published commentary had not violated Section 112.313(8) where the subject matter of the article was job‑ related. All the information used in this commentary was a matter of public record and therefore available to members of the general public. See CEO 86-6.

Accordingly, we find that no prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were you, a staff attorney for the Department of Business Regulation, to contract to write a legal manuscript for a publishing company which is doing business with the Department, when the Department only purchases updates for particular publications from the publishing company and the publishing company is the sole source of these updates, where your duties do not include the purchasing of publications, and where you have not recommended the purchase of any publications.