CEO 89-66 -- November 30, 1989

CONFLICT OF INTEREST

FORMER MEMBER OF TRAFFIC COURT REVIEW COMMITTEE

SEEKING TO REPRESENT DRIVING SCHOOLS

To: Frederick Heidgerd, Former Member of the Traffic Court Review Committee (Ft. Lauderdale)

SUMMARY:

Members of the Traffic Court Review Committee are not subject to the Code of Ethics contained in Chapter 112, Florida Statutes, as the power of the Legislature to prescribe a code of ethics is limited to nonjudicial officers under Article III, Section 18, of the Florida Constitution. However, even if members of the Traffic Court Review Committee were held to be subject to the Code of Ethics for Public Officers and Employees, there is no provision which would prohibit a former member of the Committee from representing driving schools in litigation and other matters where the Committee is a party. While Article II, Section 8(e), of the Florida Constitution prohibits former legislators and statewide elected officers from such representation before their former agencies, no similar restrictions have been established for other public officers and employees, with the exception of the prohibitions contained in Section 112.3185(3) and (4), Florida Statutes. These provisions generally prohibit any employment or contractual relationship by former employees of state agencies with any business entity other than an agency in connection with a contract with which he was involved as an employee. However, these restrictions are not applicable here because no contract is involved and the subject Committee member was a public officer rather than an employee. CEO 79-58 is referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, a former member of the Traffic Court Review Committee, to represent certain driver schools in litigation and related matters involving the Committee?

Your question is answered in the negative.

In your letter of inquiry, you advise that the Traffic Court Review Committee, of which you are a former member, was established under the Florida Rules for Traffic Courts. The Committee is charged with promulgating standards for certain types of driving schools, among other traffic-related duties. Members of the Committee are appointed by the Florida Supreme Court and receive no compensation for their service other than expenses. You advise that you resigned your membership on the Committee effective May 24, 1989.

In addition, you state that the Committee currently is involved in litigation in which the Supreme Court has issued an opinion limiting the authority of the Traffic Court Review Committee to promulgate standards for driving schools. Litigation regarding this matter is continuing, and you have been approached by certain driving schools for representation in the lawsuit and related matters. You inquire as to whether this representation is prohibited by any provision of the Code of Ethics for Public Officers and Employees.

It is clear that judicial officers are not subject to the provisions of the Code of Ethics for Public Officers and Employees contained in Chapter 112, Florida Statutes. The grant of power to the Legislature to formulate a Code of Ethics contained in Article III, Section 18, of the Florida Constitution provides:

Conflict of Interest- A code of ethics for all state employees and nonjudicial officers prohibiting conflict between public duty and private interests shall be prescribed by law. [Emphasis supplied.]

This provision was cited by the Florida Supreme Court in In re The Florida Bar, 316 So. 2d 45 (Fla. Sup Ct. 1975), to hold that the Legislature has no power to adopt an ethical code of conduct which would govern the judiciary.

We have interpreted this provision in light of the above decision to exclude judicial officers from the jurisdiction of the Commission on Ethics. In CEO 81-65, we advised that the financial disclosure law does not apply to officers of the judicial branch except insofar as they may be candidates for elective or retentive office. In CEO 85-68, we advised that where a board is established by court order to be appointed by the chief circuit judge, its members are not subject to the financial disclosure law.

Under the rationale of these decisions, we doubt that the members of the Traffic Court Review Committee would be subject to the Code of Ethics contained in Chapter 112, Florida Statutes. However, even if the Code of Ethics were held to apply to these judicial officers, no provision of that Code would prohibit the representation you describe.

As you mention in your letter, there are prohibitions against members of the Legislature and statewide elected officers personally representing others for compensation before the agency or government body of which the individual was an officer or member for a period of two years following vacation of office. Article II, Section 8(e), Florida Constitution. In addition, the Legislature has enacted Chapter 89-380, Laws of Florida, which provides for limits on post-officeholding representation for specified legislative and statewide-elected officers. However, neither of these provisions applies to judicial officers. In CEO 79-58, we advised that where no similar restrictions had been established for other public officers and employees, a former employee of the Department of Environmental Regulation could represent clients before the Department. Under the rationale of this opinion, the representation you describe would not be prohibited.

Subsequent to that opinion, the Legislature did enact Sections 112.3185(3) and (4), Florida Statutes, which generally prohibit former employees of State agencies, including those in the judicial branch, from being involved with business entities in connection with any contract which was within the employee's responsibility or in which he participated personally or substantially while at the agency. However, the materials you have submitted make no mention of any contractual relationship existing at any time between the schools and the Traffic Court Review Committee. Also, these provisions apply to agency employees and therefore would not be applicable to you as a judicial officer.

Accordingly, we find that members of the Traffic Court Review Committee are judicial officers, not subject to the Code of Ethics contained in Chapter 112, Florida Statutes. However, even if you were held to be subject to the restrictions of that Chapter, no provision would prohibit you, as a former member of the Traffic Court Review Committee, from representing certain driving schools in litigation and other matters involving the Committee.