CEO 89-18 -- April 13, 1989

CONFLICT OF INTEREST; VOTING CONFLICT; SUNSHINE AMENDMENT

STATE REPRESENTATIVE OWNING COMPANY WHICH

OPERATES CONCESSIONS AT PUBLIC AIRPORTS

To: Ms. Debra L. Romanello, Attorney (Tampa)

SUMMARY:

No prohibited conflict of interest would be created were a company of which a State Representative is the president and majority shareholder to subcontract with a prime contractor for the operation of part of the concessions at a public airport owned and operated by a public agency which has been created by special act of the Legislature, or to participate in the submission of the prime contractor's proposal in response to a request for proposals for concessions at the airport. Because the company would not be doing business with the Legislature and because the Legislature's regulatory power over the Port Authority is exercised through the enactment of laws, neither Section 112.313(3) nor Section 112.313(7), Florida Statutes, would be violated.

The Representative would be required by Section 112.3143, Florida Statutes, to file a memorandum of voting conflict only if he voted on general legislation or a local bill which inured to the special private gain of the Representative or his company, as neither the public agency owning the airport nor the public airport would be considered to be a "principal by whom he is retained." The Representative would not be prohibited by Article II, Section 8(e), Florida Constitution, from representing his company or the prime contractor before the agency or the airport in connection with the request for proposals, as neither the agency nor the airport is a State agency.

QUESTION 1:

Would a prohibited conflict of interest be created were a company of which a State Representative is the president and majority shareholder to subcontract with a prime contractor for the operation of part of the concessions at a public airport owned and operated by a public agency which has been created by special act of the Legislature, or to participate in the submission of the prime contractor's proposal in response to a request for proposals for concessions at the airport?

This question is answered in the negative.

In your letter of inquiry you advise that Mr. James T. Hargrett, Jr., serves as a member of the House of Representatives and as Chairman of the Committee on Public Transportation. The primary focus of the Committee is on the development of incentives to encourage greater use of mass transit of all types, the support of planning and funding for major airport and seaport developments, and the establishment of a method for interconnecting mass transit modes with seaports, airports, and downtown centers.

You also advise that the Representative is the president and majority stockholder in a company which operates retail concessions at public airports. His company is a potential subcontractor for concession services with a prime contractor which is seeking to contract for certain concessions at the Jacksonville International Airport. The Airport is owned and operated by the Jacksonville Port Authority, which was created by Chapter 63-1447, Laws of Florida. The Representative's company is participating in developing and submitting a proposal in response to a request for proposals issued by the Port Authority for concessions at the Airport. The company is seeking to qualify as a disadvantaged business enterprise under the Port Authority's program for disadvantaged businesses.

The Code of Ethics for Public Officers and Employees provides in relevant part:

DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee of his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1987).]

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 (1987).]

When the agency referred to is a legislative body and the regulatory power over the business entity resides in another agency, or when the regulatory power which the legislative body exercises over the business entity or agency is strictly through the enactment of laws or ordinances, then employment or a contractual relationship with such business entity by a public officer or employee of a legislative body shall not be prohibited by this subsection or be deemed a conflict. [Section 112.313(7)(a)2, Florida Statutes (1987).]

Section 112.313(3) prohibits a member of the Legislature from selling any services to the Legislature, but not from selling to agencies of government other than the Legislature. See CEO 87-2. Under Section 112.313(7)(a), we have advised that as long as a legislator's employer does not contract with the Legislature, the employer can contract with other State and local agencies. See CEO 81-24, CEO 82-33, CEO 83-13, CEO 84-9, and CEO 84-21. As the Legislature's regulatory power over the Port Authority is exercised through the enactment of laws, the exemption of Section 112.313(7)(a)2 clearly applies here.

Accordingly, we find that no prohibited conflict of interest would be created were the company of the subject Representative to subcontract with the prime contractor for the operation of part of the concessions at the Airport. As the company may operate concessions at the Airport, there would be no provision in the Code of Ethics which would prohibit the company from participating in the submission of a proposal in response to the request for proposals issued by the Port Authority.

QUESTION 2:

Would a prohibited conflict of interest or voting conflict of interest be created were the State Representative to participate in general legislation or local bills affecting the Port Authority or Airport by authorship, vote, or debate, or as Chairman or a member of the Committee on Public Transportation?

Regarding voting conflicts of interest for members of the Legislature, the Code of Ethics provides:

Except as provided in subsection (3) [which pertains only to local public officers], no public officer is prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure which inures to his special private gain or the special gain of any principal by whom he is retained shall, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143(2)(a), Florida Statutes (1987).]

Under this provision a State Representative is required to file a memorandum of voting conflict within 15 days after voting on a measure which inures either to his special private gain or to the special gain of a principal by whom he is retained. We are unable to provide specific guidance about whether a voting conflict would arise in considering a particular bill without knowing the nature of that bill and its effect upon the Representative's interests or the interests of his company. However, we believe the following general remarks will be of some assistance.

Under the circumstances you have described, we are of the opinion that the key question in considering whether a voting conflict might arise regarding a bill is whether the measure would inure to the special gain of the Representative or his company, rather than to the special gain of the Port Authority or the Airport. This is because, assuming his company contracts to provide concessions at the Airport, neither the Airport, the Port Authority, nor the prime contractor would be a "principal" by whom the Representative would be retained. We previously have advised that a person who has only a contractual relationship with a public official is not a "principal" of that official. See CEO 80-49.

You have raised the possibility that general legislation affecting all public airports may be considered by the Representative's committee, as well as local bills directed only to the Port Authority or its Airport. In our view, it is not likely that general legislation affecting all public airports would inure to the "special gain" of the Representative or his company. In CEO 77-129 we advised that whether a measure inures to the special gain of an officer will turn in part on the size of the class of persons who stand to benefit from the measure, with "special gain" resulting where the class is large only if there are circumstances unique to the officer under which he stands to gain more than the other members of the class. On the other hand, because of the relatively narrow scope of local bills, it is more likely that a local bill may present a voting conflict. We reiterate, however, that the primary question is whether the bill would benefit the Representative or his company, rather than the Port Authority or the Airport.

There is no specific provision in the Code of Ethics which would prohibit the Representative from participating in legislation affecting the Airport or the Port Authority under the circumstances presented. Each public official should be aware of the Code's prohibition against corruptly misusing his official position to secure a special privilege, benefit, or exemption for himself or others (Section 112.313(6), Florida Statutes), as well as the prohibition against disclosing or using for private gain information not available to the general public which may be gained through his public position (Section 112.313(8), Florida Statutes). However, we would caution the Representative to be sensitive to the appearance of a potential conflict of interest with respect to any bill which would have a significant impact upon the Port Authority or the Airport when fulfilling his responsibilities as Chairman of the Committee or in otherwise participating in the legislative process.

QUESTION 3:

Would the Representative be prohibited by Article II, Section 8(e) of the Florida Constitution from representing his company or the prime contractor before the Port Authority or the Airport in connection with the request for proposals?

This question is answered in the negative.

The Sunshine Amendment to the Florida Constitution, in Article II, Section 8(e), 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.

We recently advised in CEO 89-6 that this provision does not prohibit a legislator from representing another before private entities or local government entities, such as special districts created by special act of the Legislature. As the Port Authority has been created by special act, it is clear that it is not a State agency within the contemplation of the Sunshine Amendment's prohibition.

Accordingly, we find that Article II, Section 8(e) of the Florida Constitution would not prohibit the subject Representative from representing his company or the prime contractor before the Port Authority or the Airport in connection with the request for proposals.