CEO 82-33 -- May 20, 1982

CONFLICT OF INTEREST; SUNSHINE AMENDMENT

STATE REPRESENTATIVE EMPLOYED BY COMPANY DOING BUSINESS WITH FLORIDA HOUSING FINANCE AGENCY

To: The Honorable C. Thomas Gallagher, III, State Representative, 111th District

SUMMARY:

No prohibited conflict of interest would be created under the Code of Ethics were an insurance company which employs a State Representative to contract with the Florida Housing Finance Agency to provide insurance and services regarding bond issues. Here, the insurance company would not be doing business with the Representative's agency, the Legislature. Nor would the Representative have any employment or contractual relationship with the Housing Finance Agency. CEO 81-24 is referenced.

Article II, Section 8(e), Florida Constitution, would not prohibit the Representative from assisting as an employee of the mortgage insurance company in the performance of a contract between the company and the Florida Housing Finance Agency. The Representative's duties in the performance of the contract would not involve any contact with members or staff of the Agency, and therefore he could not be said to be representing another person or entity before that Agency.

QUESTION 1:

Would a prohibited conflict of interest be created under the Code of Ethics for Public Officers and Employees were an insurance company which employs you, a State Representative, to contract with the Florida Housing Finance Agency to provide insurance and services regarding bond issues?

This question is answered in the negative.

In your letter of inquiry you advise that you have been employed as a Vice President with a mortgage insurance company for the past six years. This company, you advise, has submitted a proposal to provide to the Florida Housing Finance Agency loan administration and servicing, mortgage guarantee insurance, and other related insurance and guarantees regarding proposed bond issues. You advise that you have not participated and do not intend to participate in any fashion with respect to this proposal and that you have not communicated and do not intend to communicate with any person on or related to the Florida Housing Finance Agency regarding this bid. However, if your company is awarded a contract to perform any of these services, you may be called upon under your normal employment to assist in the company's performance of the contract.

The Code of Ethics for Public Officers and Employees prohibits a public officer from being an officer of a business entity which is doing business with his public agency. Section 112.313(3), Florida Statutes. However, since your agency as a State Representative is the Legislature, and since the mortgage insurance company does not propose to do business with the Legislature, this prohibition is not applicable. See CEO 81-24, in which a similar situation was presented.

The Code of Ethics also prohibits a public officer from having any employment or contractual relationship with a business entity or an agency which is subject to the regulation of, or which is doing business with, his agency. Section 112.313(7)(a), Florida Statutes. This provision also would not prohibit your employment with a mortgage insurance company which is doing business with the Florida Housing Finance Agency, since the Legislature rather than the Housing Finance Agency is your "agency" for purposes of the Code of Ethics. Nor does it appear that you would have any employment or contractual relationship with the Housing Finance Agency. CEO 81-24 is similar in this respect, also.

Accordingly, we find that no prohibited conflict of interest would be created under the Code of Ethics were the insurance company which employs you to contract with the Florida Housing Finance Agency.

QUESTION 2:

Would Article II, Section 8(e), of the Florida Constitution prohibit you, a State Representative, from assisting as an employee of the mortgage insurance company in the performance of a contract between the company and the Florida Housing Finance Agency?

This question is answered in the negative.

Article II, Section 8(e), Florida Constitution, provides in relevant part:

No member of the Legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals.

Initially, we note that the Florida Housing Finance Agency is a State agency. Section 420.504(1), Florida Statutes. We also find that the Florida Housing Finance Agency is not a judicial tribunal, since it does not predominantly perform a judicial function. See Myers v. Hawkins, 362 So. 2d 926 (Fla. 1978), and Section 420.507, Florida Statutes (1981).

As you have advised, you will not participate in any fashion concerning the insurance company's proposal to the agency, and you will not communicate with any person related to the agency regarding your company's bid. In addition, you advised in a telephone conversation with our staff that if the contract is awarded to the company, your responsibilities in the performance of the contract will not involve any contact with members or staff of the agency. Therefore, we find that you will be not representing the company before a State agency.

Accordingly, we find that Article II, Section 8(e), Florida Constitution, would not prohibit you from assisting as an employee of the mortgage insurance company in the performance of a contract between the company and the Florida Housing Finance Agency.