CEO 82-83 -- October 29, 1982

SUNSHINE AMENDMENT

STATE LEGISLATOR FILING DOCUMENTS WITH DEPARTMENT OF STATE

To: Honorable H. Lee Moffitt, State Representative, District 66

SUMMARY:

Article II, Section 8(e), Florida Constitution, would not prohibit a State Representative from filing with the Department of State articles of incorporation or documents required by the Uniform Commercial Code in behalf of a client of his private law practice. In these situations, unlike the situation in CEO 77-168, the State agency has no discretion to take an action which may benefit the client of a legislator/attorney.

QUESTION:

Does the Sunshine Amendment to the State Constitution, Article II, Section 8(e), prohibit you, a State Representative, from filing with the Department of State articles of incorporation or documents required by the Uniform Commercial Code in behalf of a client of your private law practice?

Your question is answered in the negative.

In your letter of inquiry you advise that you are a member of the Florida House of Representatives. You question whether Article II, Section 8(e), Florida Constitution, would prohibit you in your private law practice from filing in behalf of a client articles of incorporation under Chapter 607, Florida Statutes or documents required under the Uniform Commercial Code, Chapters 671-679, Florida Statutes.

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

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

In a previous opinion, CEO 77-168, we advised that this provision would prohibit a State legislator from notifying a State agency of a private client's intention to file suit under the Environmental Protection Act and participating in subsequent communications with the staff of that agency. There, discussions with the agency could have resulted in the agency's decision to pursue an alleged violator of environmental law, resulting in a substantial benefit to the attorney's client.

In CEO 77-168, we found that the purpose of Article II, Section 8(e) is to secure the public trust against abuse by prohibiting a legislator from using the influence of his office over State agencies in order to gain benefits for a private client, as well as by prohibiting members of the Legislature from undertaking to represent clients in situations which would give the appearance of improper influence. In our view, subsection (e) was not intended to prohibit a legislator from filing articles of incorporation or documents under the Uniform Commercial Code with the Department of State. In these situations, no opportunity is presented for a legislator/lawyer to misuse the influence of his public office, and there is no appearance of improper influence. The filing of such documents is a routine, ministerial matter for the Department of State. If the detailed statutory requirements for articles of incorporation are met, the Department has no discretion to refuse to file those articles. Section 607.164(4), Florida Statutes. Similarly, filings under the Uniform Commercial Code intended to put members of the public on notice of interests claimed under the Code are a routine, ministerial function handled by the Department of State. Chapters 671-679, Florida Statutes. In these situations, unlike the situation in CEO 77-168, the State agency has no discretion to take an action which may benefit the client of a legislator/attorney.

In addition, we note that at the time the Sunshine Amendment was adopted, as well as at present, Section 112.3145(4), Florida Statutes, has provided for legislators and others to report the names of clients represented before State agencies, except for appearances in ministerial matters. Therefore, when the Sunshine Amendment was adopted, legislators were not required even to disclose the filing of documents with the Department of State. If these types of matters were not sufficiently significant to be disclosed previously, we doubt very much that the framers and adopters of the Sunshine Amendment intended to prohibit them.

Accordingly, we find that Article II, Section 8(e), Florida Constitution, does not prohibit you from filing with the Department of State articles of incorporation or documents under the Uniform Commercial Code. To the extent that CEO 77-168 contains language which would indicate otherwise, that opinion is disapproved.