CEO 91-1 -- January 30, 1991

CONFLICT OF INTEREST

STATE SENATOR EMPLOYED AS CONSULTANT

FOR LEGISLATIVE AND EDUCATIONAL ACTIVITIES

OF ASSOCIATION LOBBYING LEGISLATURE

To: The Honorable William G. Myers, State Senator, District 27 (Stuart)

SUMMARY:

A State Senator is prohibited by Section 112.313(7), Florida Statutes, from contracting with a professional association that lobbies the Legislature to speak to its professional groups regarding legislative issues, to contribute articles on legislative issues to the association's publications, and to advise its executive committee and board of governors regarding legislative and political education activities of the association. Such employment would create a continuing or frequently recurring conflict of interest or impede the full and faithful discharge of public duties, as the content of his advice and presentations will be derived from information gained by virtue of his public position and will relate to issues upon which he will be called to act.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit you, a State Senator, from contracting with a professional association that lobbies the Legislature to speak to its professional groups regarding legislative issues, to contribute articles on legislative issues to the association's publications, and to advise its executive committee and board of governors regarding legislative and political education activities of the association?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you have been asked to work for a professional association which lobbies the Legislature in an effort to enhance its legislative and political education activities. Your duties would involve the following.

First, you would assist the association in legislative and political education projects; this primarily would involve educational presentations to groups requesting speakers through the association. You advise that, as an experienced legislator, you would share your legislative insights and experiences in the political process before these groups in a purely educational role. You would not advocate for the association, but rather would discuss primarily legislative issues in a purely informative manner.

Secondly, you would contribute to the publication of at least two articles per year (before and after the legislative session) for the association's publications. These would be on legislative issues related to the profession to educate the readership about the session and its outcome.

Thirdly, you would serve from time to time upon request as a liaison with component groups of the association and other organizations of the profession, primarily as an educational lecturer to those groups.

Finally, you would serve in an advisory capacity to the association's executive committee and board of governors upon request regarding legislative and political education activities of the association. Essentially, you would be providing the committee and board insight and advice regarding the political process. However, your role would cease once a decision were made, since none of the activities of your proposed employment would encompass lobbying activities on behalf of the association, directing the actions of association staff or others in regard to contacting the Legislature on specific issues, or otherwise accomplishing the association's goals before the Legislature.

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.]

This provision prohibits a public officer from having employment or a contractual relationship that will create a continuing and frequently recurring conflict between his private interests and his public duties, or that would impede the full and faithful discharge of his public duties.

This prohibition "establishes an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which 'tempts dishonor.'" Zerweck v. State Commission on Ethics, 409 So.2d 57, 61 (Fla. 4th DCA 1982). Thus, under this law our concern must lie with whether the public official's employment creates a situation that would "tempt dishonor," rather than with whether the official is capable of withstanding that temptation and performing his official duties with integrity.

We recognize that all employers in this state are affected by the laws enacted by the Legislature. Further, we recognize that some employers contribute to and join organizations which seek to represent their common interests before the Legislature. Still other employers, including many public agencies, professional associations, and large corporations, maintain a lobbying presence at each legislative session in order to advance their interests. As the members of our Legislature are expected to serve as citizen-legislators on a part-time basis and must be employed elsewhere to support themselves and their families, each of these situations presents the potential for conflicts of interest.

We have concluded that Section 112.313(7)(a) does not prohibit a legislator from having any employment whatsoever with an organization that engages in lobbying the Legislature. In such an instance, we have examined the nature and duties of the legislator's employment to determine whether that employment would present a prohibited conflict of interest.

In CEO 90-8, we found that a State Representative could be employed as executive director of an organization founded to support issues of interest to private colleges and universities in the State, so long as his duties as an employee of the organization did not involve personally engaging in lobbying activities and did not encompass any activities related to lobbying. There, the Representative's proposed duties included managing and operating the organization, representing the organization at professional meetings, and serving as a spokesman for private higher education to the extent that it would not conflict with his legislative duties. We concluded that restricting the Representative's involvement in his employer's lobbying activities would not preclude him from participating in activities leading to the employer's decision to approach the Legislature concerning an issue, but that once such a decision were made, his employment should not include any activities related to accomplishing the goals of his employer before the Legislature. We repeat our view that a legislator's employment should be completely separated from the lobbying activities of his employer to avoid a violation of Section 112.313(7)(a).

Unlike the employment duties involved in CEO 90-8, however, the subject matter of your proposed employment arises out of your public position and relates directly to issues that may be expected to come before you in your official capacity. Although you advise that you will not participate in the lobbying activities of the association, the content of your advice and presentations will be derived from information gained by virtue of your public position and will relate to issues upon which you will be called to act. Under these circumstances, we are of the opinion that your proposed employment with the association would present a continuing or frequently recurring conflict of interest and would impede the full and faithful discharge of your public duties.

In our view, this conclusion is buttressed by the policies underlying several other provisions of the Code of Ethics. Section 112.313(8), Florida Statutes, is directed at prohibiting public officials from using information gained by reason of their public positions and not available to the general public for their personal gain or benefit. Section 112.313(6), Florida Statutes, prohibits a public official from using his official position to secure a special privilege or benefit for himself. Section 112.313(4), Florida Statutes, is intended to prohibit a public officer from accepting any compensation when there is reason to know that it is being given to influence his official action. Although we do not conclude that your proposed employment would violate any of these provisions, we note that the proposed employment relates to and involves information gained from your public service. Further, we note that you were approached by the association because of your public position; the proposed agreement with the association is addressed to you in your official capacity and expressly states that your "expertise and experience as a member of the Florida Legislature will serve to greatly enhance" the association's goal of enhancing its legislative and political education activities. Finally, although it appears clear that this employment is being offered in part because of your professional background and experience, the association's offer makes it equally clear that your public position is an influential factor in the offer.

We are of the opinion that the official duties of a legislator legitimately include efforts to educate groups of citizens on legislative policy issues affecting them, whether these issues arise from past legislative sessions or may be expected to occur in the future. There is certainly nothing inconsistent with the proper performance of legislative duties when a legislator meets with professional organizations and associations about legislative issues of interest to them. Moreover, where the legislator agrees with the positions espoused by the group as being the best public policy for his constituents and the State as a whole, there is nothing improper about the legislator's discussing upcoming lobbying priorities and strategies with the group. All these activities are properly part of politics and leadership in a representative form of government.

The Code of Ethics makes it clear that a public officer is not to gain personally from activities related to his official position:

It is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law. The public interest, therefore, requires that the law protect against any conflict of interest and establish standards for the conduct of elected officials and government employees in situations where conflicts exist. [Section 112.311(1), Florida Statutes.]

Accordingly, we find that a prohibited conflict of interest would be created under the Code of Ethics for Public Officers and Employees were you to accept the proposed contract with the professional association.