CEO 91-22 -- April 19, 1991

CONFLICT OF INTEREST

ASSISTANT STATE ATTORNEY LOBBYING FOR TOURIST-DEPENDENT

BUSINESSES BEFORE GOVERNMENTAL BODIES

To: Michael J. Politis, Assistant State Attorney, Seventh Judicial Circuit (Daytona Beach)

SUMMARY:

No prohibited conflict of interest would be created were an assistant state attorney in the felony trial division to lobby for local tourist-dependent businesses before local and state governmental bodies. Section 112.313(7)(a), Florida Statutes, would not be violated because the assistant's agency would not be doing business with the businesses, and the agency's prosecutorial responsibilities, as part of law enforcement, would not constitute "regulation" of the businesses. No frequently recurring conflict or impediment to the performance of the assistant's duties would be created, because of his lack of responsibility in areas of the criminal law which might impact on the businesses. CEO 85-22 and CEO 81-67 are referenced.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit you, a trial attorney in the felony division of the state attorney's office, from representing certain businesses, located in and around the city where you prosecute, before local and state governmental bodies as a lobbyist?

Your question is answered in the negative.

In your letter of inquiry and in telephone conversation with our staff, you advise that you are a trial attorney in the felony division of the Office of the State Attorney of the Seventh Judicial Circuit, in Daytona Beach. You technically are a law enforcement officer; however, your duties practically are limited to courtroom work and do not include accompanying police on arrests or drug raids. The felony division is separate and distinct from the misdemeanor and other divisions of the State Attorney's office, and the great majority of misdemeanors joined initially with felonycases are severed and sent from circuit to county court for completion.

You further advise that you have been approached by a group of local businessmen comprised of hotel, restaurant, nightclub, and retail gift store owners in and around Daytona Beach who wish for you to represent them, as a lobbyist and not as an attorney, at meetings before city commissions and other governmental bodies regarding matters relating to the operation of their businesses and the promotion of tourism in the area. Any meetings of governmental bodies you would attend on behalf of your business clients would be at night, after the closing of the courthouse, or otherwise not during your regular working hours. You would not use your position as an Assistant State Attorney to assist your lobbying activities, you would make no telephone calls for your private clients using facilities of the State Attorney's office, and you would use no other facilities of the State Attorney's office for these private activities. You would maintain separate telephones, stationery, support staff, and offices for these lobbying activities.

None of the businesses you would be representing are required to obtain any permits from the State Attorney's office or from local police or sheriff departments. None of the businesses are or would be doing business with the State Attorney's office. If any of the employees or owners of the businesses were prosecuted for crimes, such as the sale of alcoholic beverages to minors, the misdemeanor division of the State Attorney's office would handle the prosecution, with no participation by you. None of the businesses would be offering nude or semi-nude entertainment, which are subject to local ordinance. The State Attorney's office is responsible for prosecuting certain violations of the State worker's compensation law; if such prosecutions were to be done, they would not be handled by you. Further, you are not aware of any such prosecutions taking place in the more than two years you have been employed by the State Attorney's office. The business owners, like everyone else, would be subject generally to the criminal laws of this State.

Section 112.313(7)(a), Florida Statutes, 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.

This provision would prohibit you from having an employment or contractual relationship with a business entity doing business with your agency or subject to the regulation of your agency; it also prohibits you from having an employment or contractual relationship which would create a continuing or frequently recurring conflict between your public duties and private interests or which would impede the full and faithful discharge of your public duties.

Based on the facts you present, the businesses would not be doing business with the State Attorney's office--your agency. Further, the businesses would not be subject to the regulation of your agency, because the enforcement of criminal laws (of which prosecution is a part) does not constitute "regulation" for purposes of the Code of Ethics. See CEO 85-22 and CEO 81-67. Also, because your duties do not involve the prosecution of illegal alcohol sales, other misdemeanor crimes, or prosecutions under the worker's compensation law, and because the businesses would not be offering nude entertainment which is regulated by local ordinance, your proposed lobbying would not constitute a frequently recurring conflict or impediment to duty prohibited by the Code of Ethics. See CEO 85-22.

Sections 112.313(6) and 112.313(8) of the Code of Ethics provide, respectively:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

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.

You should be aware of these provisions and take care not to violate their proscriptions in your lobbying activities.

Subject to the conditions noted above, we find that no prohibited conflict of interest would be created were you, an Assistant State Attorney in the felony trial division, to lobby before governmental bodies on behalf of tourist-dependent businesses which operate in and around the city where you prosecute.