Florida Association of County Attorneys

2019 Continuing Legal Education Program

June 12-13, 2019 – Orange County
Hyatt Regency Orlando
Regency O

Wednesday, June 12, 2019

12:30 p.m. to 12:40 p.m. Opening Remarks and Welcome

Mark Lapp, FACA President
Hendry County Attorney

12:40 p.m. to 1:30 p.m. First Amendment Auditors: Citizen Oversight or Harassment?
Exercise of First Amendment Rights on Public Property
Derek Rooney, Esq.
GrayRobinson

Lori Tetreault, Deputy County Attorney

Charlotte County

1:30 p.m. to 2:20 p.m. Selfies, Snaps, Tweets, Likes - Legal Issues Faced by Counties in
Today’s Online World
Heather Encinosa
Wakulla County Attorney
Nabors, Giblin & Nickerson

Evan Rosenthal
Assistant County Attorney, Wakulla County
Nabors, Giblin & Nickerson

2:20 p.m. to 2:30 p.m. Refreshment Break

2:30 p.m. to 3:20 p.m. 2019 Ethics Update

Chris Anderson
General Counsel & Deputy Executive Director
Florida Commission on Ethics

3:20 p.m. to 4:00 p.m. Excuse Me, Would You Mind Talking to Me About the
Guy in the Next Cubicle? - Internal Investigations 101
Brian Koji, Esq.
Allen, Norton & Blue

4:00 p.m. to 5:00 p.m. All In the Family: Working Through the Legal, Policy
and Relational Challenges of Intergovernmental Boards
Douglas Manson, Esq.
Manson, Bolves, Donaldson, Varn

5:00 p.m. to 6:00 p.m. Welcome Reception

First Amendment Auditors:
Citizen Oversight or
Harassment?
EXERCISE OF FIRST AMENDMENT
RIGHTS ON PUBLIC PROPERTY
 First Amendment Auditors:
Citizen Oversight or Harassment?

Derek Rooney, Lori A. Tetreault,

Esq. Esq.
GRAY|ROBINSON
ATTORNEYS AT LAW
“First Amendment Audits [are]... an American social
movement of activism and citizen journalism claiming
to test constitutional rights; in particular the right to
photograph and video record in a public space.
Auditors also claim that the movement promotes
transparency and open government. . . .”

WIKIPEDIA C O N T R I B U TO R S . "FIRST AMENDMENT AUDITS." WIKIPEDIA, THE FREE

E N C Y C LO P E D I A . W I K I P E D I A , T H E F R E E E N C YC L O P E D I A , 2 9 A P R . 2 0 1 9 . W E B . 6 M AY. 2 0 1 9
( F O OT N OT E S O M I T T E D ) .
“However, audits are often confrontational in nature.”
Wikipedia contributors. "First Amendment audits." Wikipedia, The Free Encyclopedia. Wikipedia, The Free Encyclopedia, 29 Apr. 2019. Web. 6 May. 2019 (Footnotes omitted).
Motivations

▪ Honest desires to hold government accountable.

▪ Political and personal resentment.
▪ “The search for relevance.”
- Charlotte County Sherriff Bill Prummell
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▪ YouTube Partner Program
▪ Affiliate Links
▪ Fan Funding – Subscriptions
▪ Subject to “Community Guidelines”
First Amendment
Speech & Expression:
WHAT IS PROTECTED AND WHERE
 Traditional Public Forum
Forums
Designated Public Forum

Non-Public Fourm
Traditional Public Forum
Traditional Public Forum
Regulation must be “narrowly tailored to serve a significant
government interest”, be “viewpoint-neutral” and “leave open ample
avenues for alternative expression”

Subject to “reasonable time, place and manner restrictions” within

these parameters.
Designated / Limited Public Forum

▪ Intentionally opened up to the public for limited

expressive activities.
▪ Also subject to “strict scrutiny” and “reasonable
time, place, and manner restrictions.”
▪ Commission Chambers, Facebook, fairgrounds,
multi-purpose rooms, convention centers, etc.
Non-Public Forum
▪ Places that have not historically been used for
assembly, communication, and discussion.
▪ Airport terminals, military bases, prisons, backroom
offices, and polling places.
▪ Restrictions need only be “reasonable” in light of
the purpose and designated use, and “viewpoint
neutral.”
Government Ownership of Property
▪ Government ownership of property does not
automatically open that property to all public uses.
▪ Constitutional restrictions on public access and use are
dependent upon the type of forum.
▪ Governments have the right to designate their property
for specific uses.
▪ Governments have the right to proscribe uses
inconsistent with those designations.
Don’t film me!
First Amendment Auditors Claim:

1. All government employees are “public officials”;

2. Every government-owned place regardless of use
is “public property”; and
3. Everything employees do is “a matter of public
interest.”
Isn’t video and audiotaping the public
without consent a crime?

For IN-PERSON interactions, it is NOT A CRIME to

audio or videotape someone without their consent
where there is “NO REASONABLE EXPECTATION OF
PRIVACY.” ss. 810.145 and 934.03, Fla. Stat.
So what are Auditors
Constitutional Rights?
You’re Making Me Uncomfortable!
Smith v. City of Cummings,
212 F.3d. 1332 (11th Cir. 2000), cert denied.
▪ Smiths owned a shopping center in Georgia.
▪ Smiths’ believed they were being persecuted by
police and began to videotape their interactions
and then generally police conduct in public.
▪ Police concerned for their physical safety because
they didn’t know the Smiths’ motivations.
Smith v. City of Cummings,
212 F.3d. 1332 (11th Cir. 2000), cert denied.

“The First Amendment protects the right to gather

information about what public officials do on public
property, and specifically, a right to record matters of
public interest.”
 IMPORTANTLY:
The Cummings Court held that the right to gather
information is subject to

“Reasonable time, manner and

place restrictions.”
Unanswered Questions:

1. Who is a “public official”?

2. What sort of “public property”?
3. What are “matters of public interest”
Who is a “Public Official”?
▪ Statutory and case law provides guidance but
which standards will be used?

▪ “Public Officials” typically have authority conferred

by law and power to exercise sovereign functions.
 Who are County “Public Officials”?

▪ Commissioners? County Administrator?

▪ Special Magistrates? County Attorney?
▪ Code Enforcement Officers? Building Official?
▪ Animal Control Officers?
▪ Private Citizens?
What sort of “Public Property”?

▪ Traditional Public Forums?

▪ Designated Public Forums?
▪ Non-Public Forums?
What are “Matters of Public Interest”

▪ Board Meetings?
▪ Public Hearings?
▪ Public appearances?
▪ Personnel matters?
▪ Kids at a public park?
Charlotte County
Case Study
Name: Ian McGuire (aka Chicken Man)

Occupation: Freelance Journalist /

YouTuber

Channel: HATETHESTATE
(fmr. sotheycallitfreedom)

Affiliates: charlottecountyflcopwatch,
eyesonthestate, livefreeordiepeople,
internalaffairscorruption.
SO HOW DO YOU REGULATE DISRUPTIVE
VIDEOTAPING?
▪ Determine the nature of your forums.
▪ Impose “reasonable time, place and manner
restrictions” consistent with the type of forum.
▪ Codify your rules (ordinance, resolution, policy,
website) somewhere that is publicly accessible.
▪ Designate “EMPLOYEES ONLY” areas.
Trespass from Public Property

1. Chapter 810, Fla. Stat.

2. Catron v. City of St. Petersburg, 658 F.3d

1260 (11th Cir. 2011)
Catron v. City of St. Petersburg
▪ Challenge to the City’s Trespass Ordinance under 42 USC §1983,
which authorized City employees to issue trespass warnings
under certain circumstances and for up to 2 years.
▪ If a trespassed individual returned after warning, he or she
would be subject to arrest.
▪ Did provide a way for a trespassed individual to obtain
permission to enter the property for official government
business but NOT a procedure to challenge issuance.
Catron v. City of St. Petersburg
11th Circuit Held:
▪ Constitutionally protected “liberty interest” to be on City
property otherwise open to the public.
▪ 14th Amendment Due Process Clause requires that
“deprivation” of liberty interest (e.g., by trespass) requires
due process.
▪ Procedural due process requires notice and opportunity for
a hearing.
▪ Hearing may be post-deprivation.
Charlotte County’s Trespass Ordinance
▪ Authority to issue a Trespass Warning is ▪ 10 day right to appeal (request a hearing)
limited to the County before a Special Magistrate.
Administrator/designee.
▪ Incorporates “Facility Rules”, setting forth ▪ Trespass Warning remains in effect pending
specific behaviors that are prohibited and appeal.
where.
▪ Quasi-judicial public hearing.
▪ Trespass Warning must state the reason for
the trespass warning and the facility address. ▪ Must be scheduled within 7 days and held
▪ Effective for 1 year. within 30 days.
▪ Provides a means to enter onto County ▪ Special Magistrate must rule within 7 days.
property to conduct official business when
necessary. ▪ Subject to judicial review.
Tools for Containing Auditor Disruption
▪ Train front-line employees on ▪ Develop reasonable time,
how to handle confrontational place and manner restrictions
“Auditors”. appropriate to your forums.
▪ Talk to your Sheriff(s), seek ▪ Designate “Employees Only”
their views and assistance. areas and post signs.
▪ Increase security protocols. ▪ Consider passing a TRESPASS
▪ Define your forums!! ORDINANCE.
Tools for Containing Auditor Disruption
▪ Social Media Complaint Processes. ▪ §784.048, et seq., Fla. Stat. (Stalking
▪ §540.08, Fla. Stat. (Unauthorized or cyberstalking).
publication of name or likeness). ▪ Restraining Orders/Injunctions.
▪ §817.568, Fla. Stat. (Criminal use of ▪ Be careful about the public records
personal identification information) you create – Auditors know about the
or §817.569, Fla. Stat. (Criminal use Public Records Act, too!
of public record or public records
information).
Bye Mr. Philbin!!
QUESTIONS?
 Selfies, Snaps, Tweets, Likes:
Legal Issues Faced by Counties
in Today’s Online World

Heather J. Encinosa
Evan J. Rosenthal
1500 Mahan Drive, Suite 200
Tallahassee, FL 32308
(850)224-4070
[email protected]
 Discussion Topics

• Sunshine Law
• Public Records
• ADA
• First Amendment
 Government in the Sunshine
• Purpose of the Government in the
Sunshine law is to protect the public from
“closed door” decision making and to
provide a right of access to governmental
meetings.
• Section 286.011, Florida Statutes
• Article I, Section 24, Florida Constitution
 Sunshine Law
• Gives the public access to meetings of
“any board or commission of any state
agency or authority or of any agency or
authority of any county, municipal
corporation, or political subdivision.”
• All meetings in which official acts are to be
taken or public business is transacted or
discussed are public meetings open to the
public at all times.
 Sunshine Law Application
• Applies to formal or casual discussions
between two or more members about a
matter on which the governing body may
take action.
• Also may apply to telephone, e-mail, text
communications, exchanges during social
events, or exchanges via social media.
 Requirements
(1) Reasonable Notice of Meetings –
Reasonable and timely notice, which depends on the
circumstances. Does not always require a newspaper ad.

(2) Open to Public, with reasonable

opportunity to be heard – Meetings cannot be held
at exclusive or inaccessible facilities. Evasive actions – such as
circulating reports with feedback among planning commission
members or using staff as intermediary – not allowed.

(3) Minutes – Written minutes must be kept, which contain a

brief summary of the meeting’s events and must record any votes.
Written minutes and any recordings become public records.
 “Frustrate all evasive devices”
• Avoid social media or information technology
as “common facilitator,” liaison, or unofficial
meeting
• Avoid discussion and debate amongst
decision makers outside of a public meeting
– Texts - Tweets
– Comments - Blogs
– E-mails -
• Avoid using information technology or social
media to poll your board
 Best Practices
• Do not use information technology or
social media to engage in exchanges,
discussions, or decision making on
matters that foreseeably will go before
your board for official action
• Clear County Policies
• Training
• One-way communication
 Public Records Law
• Creates a right of access to records made
or received in connection with official
business of a public body.
• Chapter 119, Florida Statutes
• “Every person has the right to inspect or
copy any public record made or retrieved
in connection with official business of any
public body.”
 What is a Public Record?
Include: all documents, papers, letters, maps, books, tapes,
photographs, films, sound recordings, data processing
software, or other material, regardless of physical form
or means of transmission made or received pursuant to
law in connection with transaction of official business by
the agency.
• Includes Facebook Posts, Tweets, Texts,
E-mails, Blog Posts, YouTube, Snaps…
• Key is whether it concerns official business and
communicates/disseminates information.
 Issues
Private Devices?

Private Accounts?

Unreasonable Delay?

Accidental destruction!
Records Retention?
 Private Devices & Accounts
• Public Records stored on private
computers, cell phones, and tablets
• Form and place of storage is irrelevant
• Determining factor is nature of the record,
not its physical location
• Is record made or received in furtherance
of the transaction of official county
business?
• O’Boyle v. Town of Gulf Stream
 Delay and Destruction
SDE Media v. City of Doral
• Failure to conduct timely, good faith search
for responsive electronic messages on
private devices
• Failure to maintain electronic messages in a
manner that prevents destruction and allows
for location and production without delay
• Ordered to only communicate on devices
recorded to the City’s servers
 Delay and Destruction
Transparency for Florida v. City of Port St. Lucie
• State Attorney’s investigation over deleted text
messages and allegations of Sunshine Law
violations
• Records from city-issued cell phones
subpoenaed
• “Some of the council members deleted text
messages and voicemails on their phones from
the time period about which the subpoenas
inquired.”
• “No contest” to noncriminal violation of Sunshine
Law
 Records Retention
• All public records – even exempt records –
must be retained in accordance with the
state retention schedules
• Section 257.36, Florida Statues
• Social media postings, blogs, tweets,
texts, and e-mails are subject to these
records retention requirements
Retention periods are “determined by the
content, nature, and purpose of the records,
and are set based on their legal, fiscal,
administrative, and historical values, regardless
of the format in which they reside or the method
by which they are transmitted.” – GSI-SL
 Transitory Messages
• Merely because a message was sent by text,
e-mail, or posted on social media does not
make it “transitory”
• “Transitory refers to short-term value based
upon the content and purpose of the
message, not the format or technology used
to transmit it.”
• Content, nature, and purpose of the message
that determines its applicable retention period
 Best Practices
• Discourage use of private devices and accounts
for official business
• Clearly distinguish personal vs. official accounts
• Forward to official accounts
• Ensure all official communications are archived
• Responsibility for public
records on private accounts
• Abide by retention periods
• Archive social media
• Clear Government Policy
 Online Accessibility
• County websites and meeting broadcasts challenged for
alleged failure to comply with the Americans with
Disabilities Act (Title II) and Section 504 of Rehabilitation
Act
• Title II of ADA provides “no qualified individual with a
disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the
services, programs, or activities of a public entity…”
• Section 504 provides that no otherwise qualified
individual with a disability…shall, solely by reason of her
or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination
under any program or activity receiving federal monies
 Best Practices
• Defenses to litigation:
- Standing
- Nexus to goods and services of a physical facility
- Reasonable Accommodation available
- Primary jurisdiction
• Proactive Accessibility Policy
- County created documents
- Exempt documents (historic, complex, third party
created)
• Web Content Accessibility Guidelines
(WCAG) 2.0 or variation
 County Social Media
and the First Amendment
• Regulation of Official
County Social Media
Pages.
• Official vs. Personal
use of Social Media by
County Officers.
• Issues Related to
Employee Use of Social
Media.
 Public Forum/First
Amendment Refresher
• Public forum analysis applicable to forums owned or controlled by
government.
• Public forum – Park, sidewalk. Speech highly protected. Reasonable
time/place/manner restrictions. Content restrictions subject to strict
scrutiny.
• Non public forum – Inside most government facilities. Speech may
be restricted.
• Designated public forum – Traditionally non public forums that are
“opened up” for use by the public. Municipal theatre, university
meeting facilities.
*Two-way social media pages are generally public forums or
designated/limited public forums.
*Viewpoint discrimination = never okay, irrespective of type of forum.
Knight First Amendment Inst. v. Trump,
302 F. Supp. 3d 541 (S.D.N.Y. 2018)
 Knight First Amendment Inst. v. Trump,
302 F. Supp. 3d 541 (S.D.N.Y. 2018)
• Seven people banned from President’s Twitter page filed suit on First
Amendment grounds.
District Court Held:
• Social medial platforms “properly analyzed under public forum doctrines.”
• Account used by President as “channel for communicating and interacting
with the public about his administration.”
• President’s Twitter account = designated public forum.
• “Interactive space" where Twitter users may directly engage with the
content of the President's tweets.
• Blocking accounts constituted viewpoint discrimination.
• Case currently pending on appeal before the 2nd Circuit.
 Limited Public Forums
• Type of Designated Public Forum.
• Limited to certain kinds of speakers or discussion of certain
subjects.
• Once a government "has opened a limited forum . . . , [it] must
respect the lawful boundaries it has itself set." Rosenberger v.
Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995).
• Internal vs. External Standard.
• Restrictions on speech that is not within the type of expression
allowed in a limited public forum must only be reasonable in light of
purpose served by forum and viewpoint-neutral. Fighting Finest v.
Bratton, 95 F.3d 224, 227 (2d Cir. 1996).
 Unprotected and Lesser
Protected Speech
Unprotected Less Protected
Obscenity Commercial speech
Threats
Fighting Words
Defamation
Fraud
Speech integral to criminal conduct
Trademark/Copyright violations
 Best Practices for
County Social Media Pages
• Terms of use.
• Consistency in
policing/moderating the page.
• Limit number of social media
page administrators, require
social media training.
• Respond and inform rather than
delete and block.
• Consider purpose of page and
whether one way communication
may be more appropriate.
 County Officer Social
Media Pages
• Distinguishing personal social media use from official.
• Must examine the nexus between public office and the official’s
actions. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003).
• Did the public office provide “impetus” for such actions?
• Did the actions “arise out of” public rather than personal
circumstances?
• What constitutes a sufficient nexus is largely “a matter of normative
judgment and the criteria lack rigid simplicity. Courts must examine
the totality of the circumstances.” Davison v. Randall, 912 F.3d 666,
(4th Cir. Jan. 2019).
• Consequences – Potential § 1983 liability.
 Factors to Consider
• How is the Social Media Page Used?
– Used to further official duties?
– Used to interact with and inform
constituents?
– Sharing information of interest
related to official government
business?
– Connection with government office?
– Hours of use?
– Access from government-issued
devices?
• Do official public duties include
maintenance of the page? Other formal
state-sponsorship or approval?
• Title of Page
• Categorization of Page (“Government
Official”)
• Contact information on Page
 Employee Conduct
on Social Media
• Employee speech made pursuant to official duties – generally
unprotected.
• Employee speaking in capacity as a private citizen – speech
only protected if related to “matter of public concern.” Rankin
v. McPherson, 483 U.S. 378, 384 (U.S. 1987).
• If matter of public concern, employee’s first amendment
interest in engaging in the must speech outweigh employer's
interest in prohibiting the speech in order to promote the
efficiency of the public services (Pickering Balancing test).
Relevant Factors:
(1) whether the speech at issue impedes the government's
ability to perform its duties efficiently;
(2) the manner, time, and place of the speech; and
(3) the context within which the speech was made.
 Employee Speech in the Age of Facebook -
McCullars v. Maloy, 2019 U.S. Dist. LEXIS
48679 (Fla. M.D. 2019)
• Employee in Clerk’s office made vulgar, disparaging, and potentially
racially motivated remarks on Facebook concerning State Attorney,
which went viral. Plaintiff resigned under pressure of termination.
• Court found speech not made in official capacity, qualified as matter
of public concern.
Application of Pickering Balancing Test:
• Clerk’s office faced significant disruption (bombarded with calls,
emails).
• Manner of public speech (vulgarity) weighed against Plaintiff.
• Disharmony amongst employees.
• Damaged integrity of clerk’s office, “right arm to the judiciary.”
• Held: Speech not entitled to First Amendment protection, Court
granted motion for judgment as a matter of law.
 Questions?
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THANK YOU!!
 CONFLICTS OF INTEREST, FINANCIAL DISCLOSURE,
GIFT LAWS, POSTEMPLOYMENT RESTRICTIONS,
VOTING CONFLICTS, AND MORE,
UNDER PART III, CHAPTER 112, FLORIDA STATUTES
(CODE OF ETHICS FOR PUBLIC OFFICERS AND EMPLOYEES)

C. Christopher Anderson III, General Counsel/Deputy Executive Director

Florida Commission on Ethics
 Conflicts of Interests

I. PERSONS GOVERNED BY THE ETHICS LAWS; MANDATORY ETHICS TRAINING ............... 1

II. ANTI-NEPOTISM PROHIBITION ....................................................................................................... 4

III. DOING BUSINESS WITH ONE’S AGENCY PROHIBITION; BLIND TRUSTS .............................. 5

IV. CONFLICTING EMPLOYMENT AND CONTRACTUAL RELATIONSHIPS................................ 10

V. PROHIBITION ON EMPLOYEES HOLDING OFFICE; DUAL PUBLIC EMPLOYMENT ........... 20

VI. RESTRICTION ON PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD MEMBERS; AND RESTRICTION ON BOARD OF GOVERNORS
OF STATE UNIVERSITY SYSTEM AND TRUSTEES OF UNIVERSITIES
SERVING AS A LEGISLATIVE LOBBYIST .................................................................................... 21

VII. MISUSE OF PUBLIC POSITION PROHIBITION ............................................................................. 22

VIII. PROHIBITION AGAINST DISCLOSURE OR USE OF CERTAIN INFORMATION ..................... 23

IX. PROHIBITION AGAINST SOLICITATION AND ACCEPTANCE OF CERTAIN GIFTS ............. 23

X. PROHIBITION AGAINST UNAUTHORIZED COMPENSATION/GIFTS ...................................... 23

XI. GIFT PROHIBITIONS AND DISCLOSURE FOR "REPORTING INDIVIDUALS" AND

"PROCUREMENT EMPLOYEES" ..................................................................................................... 24

XII. PROHIBITED “EXPENDITURES” AT THE STATE LEVEL ........................................................... 32

XIII. HONORARIA AND HONORARIUM EVENT-RELATED EXPENSES........................................... 33

XIV. LOCAL GOVERNMENT ATTORNEYS ............................................................................................ 34

XV. CHIEF ADMINISTRATIVE OFFICERS OF POLITICAL SUBDIVISIONS .................................... 35

XVI. CHARTER SCHOOL BOARD MEMBERS/PERSONNEL ................................................................ 35

XVII. POST-OFFICE-HOLDING AND POST-EMPLOYMENT (REVOLVING DOOR) .......................... 35

XVIII. ADITIONAL RESTRICTIONS (STATE-LEVEL EMPLOYEES; LEGISLATORS) ........................ 38

XIX. VOTING CONFLICTS OF INTEREST ............................................................................................... 40

XX. FINANCIAL DISCLOSURE (FORM 6 – “FULL” DISCLOSURE) ................................................... 49

XXI. FINANCIAL DISCLOSURE (FORM 1 – “LIMITED” DISCLOSURE) ............................................ 51

XXII. DISCLOSURE OF SPECIFIED BUSINESS INTERESTS.................................................................. 54

XXIII. CLIENT DISCLSOURE (QUARTERLY) ........................................................................................... 55

XXIV. AUTHORITY TO ADOPT MORE STRINGENT STANDARDS ...................................................... 56

XXV. ETHICS COMMISSION PROCESSES AND PROCEDURES ........................................................... 56

 CONFLICTS OF INTEREST, FINANCIAL DISCLOSURE,
GIFT LAWS, POSTEMPLOYMENT RESTRICTIONS,
VOTING CONFLICTS, AND MORE,
UNDER PART III, CHAPTER 112, FLORIDA STATUTES
(CODE OF ETHICS FOR PUBLIC OFFICERS AND EMPLOYEES)
Outline prepared 02-20-19
C. Christopher Anderson III, General Counsel/Deputy Executive Director
Florida Commission on Ethics
P.O. Drawer 15709, Tallahassee, Florida 32317-5709
(850) 488-7864, telephone; (850) 488-3077, facsimile
www.ethics.state.fl.us

I. PERSONS GOVERNED BY THE ETHICS LAWS; MANDATORY ETHICS

TRAINING
A. Public Officers
1. A "public officer" is defined in F.S. 112.313(1) and 112.3143(1)(b) to
include persons "elected or appointed to hold office in any agency, including any person serving
on an advisory body." One can be "appointed" by various means (CEO 02-15). CEO 16-5 found
that one privately employed by the professional association of a District Medical Examiner (as
opposed to the District Medical Examiner and Associate Medical Examiners) was not a public
officer.
2. Officers and directors of nonprofit corporations organized under Ch. 617,
F.S. have been found not to be public officers subject to the Code of Ethics. CEO 84-17, CEO 91-
41. However, Chapter 2009-126, L.O.F., created F.S. 112.3136, subjecting the officers, directors,
and chief executive officer of a corporation, partnership, or other business entity that is serving as
the chief administrative or executive officer or employee of a political subdivision, and any
business entity employee who is acting as the chief administrative or executive officer or employee
of the political subdivision, to a number of provisions of the code of ethics. CEO 10-1. In a
particular situation, neither a hospital authority's financial services firm nor the firm's personnel
were found to be subject to F.S. 112.3136. CEO 09-17.
3. Members of advisory board of city-operated charter school are public
officers. CEO 99-2. However, in a particular context, officers and directors of nonprofit governing
organization of a charter school were not found to be public officers. CEO 99-10. But note that
Chapter 2009-214, L.O.F., amended F.S. 1002.33 to make members of charter school governing
boards, including governing boards of schools operated by a private entity, subject to F.S.
112.313(2), (3), (7), and (12) and F.S. 112.3143(3), of the Code of Ethics. Also, charter school
personnel in schools operated by a municipality or other public entity have been made subject to
F.S. 112.3135 (the anti-nepotism law). Further, certain charter school personnel in a charter school
operated by a private entity have been made subject to restrictions like the restrictions of F.S.
112.3135, but apparently without the administration of the restrictions being placed in the
commission on ethics. F.S. 1002.33(24) and (26); F.S. 1002.33(26)(c).
4. See F.S. Chapter 288 regarding the president, senior managers, and
members of the board of directors of Enterprise Florida, Inc., and the officers and members of the
divisions of Enterprise Florida, Inc., the subsidiaries of Enterprise Florida, Inc., corporations
created to carry out the missions of Enterprise Florida, Inc., and corporations with which a division

1
is required by law to contract to carry out is missions, being subject to certain ethics laws.
Additionally, see Chapter 2017-233, L.O.F., regarding the Florida Tourism Industry Marketing
Corporation.
5. As to Citizens Insurance board members, Citizens Insurance senior
managers, and the Citizens Insurance executive director, see F.S. 627.351(6). CEO 14-07.
6. See F.S. 155.40(14) regarding governing board members of public hospitals
and sales or leases of such hospitals.
7. Members of community alliances are subject to the Code of Ethics. F.S.
20.19(5)(h).
8. See F.S. 445.007 regarding local workforce development boards.
9. See F.S. 627.311 regarding senior managers, officers, and members of the
board of governors of joint underwriters and joint reinsurers.
10. See Chapter 288 F.S. regarding Triumph Gulf Coast, Inc.
11. See F.S. 288.9625 regarding the Institute for Commercialization of Public
Research.
12. See F.S. 626.9931, regarding the Interstate Insurance Product Regulation
Commission.
13. See F.S. 985.664(11) regarding juvenile justice circuit advisory boards.
14. Members of the board of directors of Florida Is For Veterans, Inc., are
subject to F.S. 112.313, F.S. 112.3135, and F.S. 112.3143; are required to file financial disclosure;
and are potentially subject to a possible misdemeanor penalty for having an interest in certain
business of the corporation during, and for two years following, their board service. In addition,
employees of the corporation "shall comply with the Code of Ethics for Public Officers and
Employees under part III of chapter 112," and corporation staff must refrain from having interests
regarding the corporation's business both during and after their service for the corporation. F.S.
295.21(4) and (7), as created by Chapter 2014-1, L.O.F.
15. Appointees to the Florida Coordinating Council for the Deaf and Hard of
Hearing must attend, prior to serving on the Council, orientation training that includes, but is not
limited to, the Code of Ethics and conflict of interest laws. F.S. 413.271.
16. Any special district as defined in F.S. 189.012 is an "agency." F.S.
112.312(2), as amended by Chapter 2014-22, L.O.F. However, special districts appear to have
been within the prior definition of "agency." Newly elected or appointed members of governing
bodies of special districts may have available to them education programs that include courses on
the Code of Ethics. F.S. 189.063. See also Chapter 2016-22, L.O.F.
17. Members of the Technology Advisory Council "shall be governed by the
Code of Ethics for Public Officers and Employees as set forth in part III of chapter 112, and each
member must file a statement of financial interests pursuant to s. 112.3145." F.S. 20.61.
18. Members of the executive council of the Florida Clerks of Court Operations
Corporation have been made subject to some provisions of the Code of Ethics. F.S. 28.35, as
amended by Chapter 2014-183, L.O.F.
19. Citizen support and direct-support organizations created or authorized
pursuant to law must adopt their own ethics codes. F.S. 112.3251, created via Chapter 2014-183,
L.O.F. Expenditures of juvenile justice system direct-support organizations may not be used for
the purpose of lobbying as defined in s. 11.045. F.S. 985.672.
20. Water Management District lobbyists have to be registered. F.S. 112.3261,
new via Chapter 2014-183, L.O.F.

2
 21. Florida Development Finance Corporation board of directors members are
subject to portions of the Code of Ethics. F.S. 288.9604, as amended by Chapter 2014-183, L.O.F.
22. Chapters 2014-183, 2014-171, and 2016-122, L.O.F., affected expressway
authorities.
23. See Chapter 2014-254, L.O.F. (CS CS HB 1445), a local bill, concerning
the Citrus County Hospital Trust.
24. See Chapter 2016-263, L.O.F., regarding the City of Webster.
25. The Florida Housing Finance Corporation is subject to F.S. 112.313 but not
to F.S. 112.3143. CEO 17-07.
26. See Chapter 2017-116, L.O.F., regarding schools of hope.
27. Chapter 2017-195, L.O.F., regarding the Village of Indiantown.
28. Chapter 2017-200, L.O.F., regarding the Gainesville Regional Utilities
Authority.
29. Chapter 2017-206, L.O.F., regarding the East Nassau Stewardship District.
30. Chapter 2017-220, L.O.F., regarding the Sunbridge Stewardship District.
31. Chapter 2017-221, L.O.F., regarding the Pace Fire Rescue District.
32. Chapter 2018-166, L.O.F., regarding the Town of Hobe Sound.
B. Public Employees
1. The term "employee" is not defined in the Code of Ethics, but the First
District Court of Appeal has applied in an ethics context the same definition of "employee" as is
used in tort actions. Wright v. Commission on Ethics, 389 So.2d 662 (Fla. 1st DCA 1980).
2. "Independent contractors" are not employees and therefore are not governed
by provisions in the Code that are applicable to public employees. CEO 81-48, CEO 81-61. Also,
see CEO 83-2 regarding a "contract city manager." However, see this outline below regarding
"local government attorneys," and above regarding F.S. 112.3136. An adjunct professor at a State
University can be an independent contractor, rather than an employee. CEO 77-132. CEO 16-5
found an employee of a certain District Medical Examiner's company not to be a public employee.
3. See CEO 99-10 and F.S. 1002.33(24) and (26) regarding certain charter
school employees.
C. Candidates for public office [defined in F.S. 112.312(6) to mean any person who
has filed financial disclosure and qualification papers, has taken the candidate's oath, and seeks to
become a public officer by election] are subject to a limited number of Code provisions; and
successful former candidates who have not yet taken office are subject to the gifts law contained
in F.S. 112.3148.
D. "Local government attorneys" (see below) also are subject to a limited number of
Code provisions.
E. Constitutional officers are required by F.S. 112.3142 (new, via Chapter 2013-36,
L.O.F.) to complete 4 hours of ethics training, annually, that addresses ethics laws, public records
laws, and public meetings laws. CEO 13-15; CEO 13-24. The training requirement of F.S.
112.3142 was extended to elected municipal officers; and Constitutional officers and municipal
officers must certify on their financial disclosure forms that they have completed the required
training. Chapter 2014-183, L.O.F. Elected members of Community Development District boards
and elected members of other special district boards are not "elected municipal officers" subject to
the annual ethics training requirement. CEO 14-29. The training is not required for outgoing
officers. CEO 15-5. Beginning in 2016, Public Service Commissioners must annually complete
4 hours of such training; F.S. 350.041(3).

3
II. ANTI-NEPOTISM PROHIBITION
A. The anti-nepotism law (F.S. 112.3135) prohibits a public official from appointing,
employing, promoting, or advancing, or advocating the appointment, employment, promotion, or
advancement of a relative. It does not prohibit two relatives from being employed within the same
agency. CEO 90-62, CEO 93-1, CEO 94-26. The law addresses placement in "a position in [an]
agency," and thus has been found not to address situations in which a relative is hired as an
independent contractor. CEO 96-13. Of course, a private law firm is not a public "agency" within
the meaning of the law. CEO 11-04.
B. At the State level, the law applies to all agencies (executive, legislative, and
judicial), except for "an institution under the jurisdiction of the Board of Governors of the State
University System." At the local level, the law applies to counties, cities, and "any other political
subdivision," except for school and community college districts. F.S. 112.3135(1)(a), (AGO 72-
72, AGO 82-48). CEO 14-08 found state colleges to be the same as community colleges for
purposes of exemption from the law. However, the Florida K-20 Education Code prohibits a
district school board member (and, effective July 1, 2019, a district school superintendent) from
employing or appointing a "relative" (as defined in F.S. 112.3135) to work under his or her direct
supervision; and, effective July 1, 2019, the Commission on Ethics is given jurisdiction to accept
and investigate alleged violations. F.S. 1012.23(2). A city charter school authority (as opposed
to its sponsoring school district) is subject to F.S. 112.3135. CEO 06-13. And, see F.S.
1002.33(24), as amended by chapter 2009-214, L.O.F., making certain charter school officers or
personnel subject to F.S. 112.3135 or to similar restrictions. The law applies to appointments
made by a community redevelopment agency (CRA) and by a city commission to the city's
enterprise zone development agency. CEO 96-5, aff'd by PCA sub nom. City of Gainesville v.
State Commission on Ethics, 683 So. 2d 487 (Fla. 1st DCA 1996).
C. The definition of "relative" for purposes of the anti-nepotism law is broader than
the term as used in the voting conflicts law, but narrower than the term as it applies in the context
of the gift law. Compare F.S. 112.312(21), 112.3135(1)(d), and 112.3143(1)(c). The Commission
has found that one's mother's sister's husband is not one’s "uncle" under the anti-nepotism law
(CEO 99-5), that a person is not one's "sister-in-law"" by virtue of marriage to one's wife's brother
(CEO 96-6), that one's paramour is not one's "relative" (CEO 02-3), and that the daughter of one's
former spouse is not one's "stepdaughter" (CEO 14-09).
D. The anti-nepotism law does not apply to actions other than appointment,
employment, promotion, advancement, or advocacy of the same. Supervising or assigning work
to a relative is not addressed or prohibited in the law. CEO 90-62, CEO 00-17. An advancement
or promotion is "only an increase in grade which elevates an employee to a higher rank or position
of greater personal dignity or importance . . . ." [Slaughter v. City of Jacksonville, 338 So. 2d 902
(Fla. 1st DCA 1976)]; however, see CEO 94-30 (in which the Commission found that designation
of the position of chief deputy property appraiser for inclusion into the Florida Retirement System's
Senior Management Service Class was an advancement or promotion) and compare CEO 94-26
(in which the Commission found that a special pay increase for a brother of the Secretary of the
Department of Community Affairs was not a promotion or advancement); see also CEO 94-39
(action labeled "lateral transfer" substantively a promotion or advancement) and CEO 98-23
(sheriff's brother-in-law's promotion to deputy first class not a "promotion" or "advancement"
under the law). See CEO 13-7 as to elevation of planning and zoning board members being

4
promotions or advancements. Also, when a seemingly prohibited relationship develops after
lawful employment (such as via marriage of a public official and an existing employee of the same
agency), discharge of the employee is not required, as there is a "grandfathering"; but the employee
cannot be advanced or promoted. CEO 94-6, CEO 91-27. However, "rehires" are not
grandfathered. CEO 92-10 (county commission hiring relative of commissioner as correctional
officer when commission takes over jail operations from sheriff who formerly employed the
relative); CEO 09-15 (reappointments).
E. Under the former law, when an appointment was made by a board or commission,
a relative of one of the board members could be appointed so long as the board member did not
participate in the decision or advocate the appointment. City of Miami Beach v. Galbut, 626 So.
2d 192 (Fla. 1993).
F. However, an amendment to the statute after Galbut specifies that a relative of a
board member cannot be appointed by the board, regardless of whether the related board member
does not participate. CEO 09-15. An exception is made in municipalities of less than 35,000
population for appointments to boards not having land-planning or zoning responsibilities. This
exception applies regardless of whether the related public official voted on the appointment and
regardless of whether the appointment was made before the exception was adopted. Kinzer v.
Commission on Ethics, 654 So. 2d 1007 (3d DCA 1995). See CEO 98-22 regarding the meaning
of "land-planning or zoning responsibilities."
G. The receipt of delegated authority to hire, promote, or advance will bring one under
the statute in regard to his or her relatives; but one vested with hiring/promotion/advancement
authority cannot avoid the statute by attempted delegation of the authority. Morris v. Seeley, 541
So. 2d 659 (Fla. 1st DCA 1989). Merit promotions/advancements going to the highest-scoring
applicant and involving no discretion have been found, in at least one instance, not to be violative
of the statute. CEO 98-2 [promotions of wildlife officer sons of GFC (FWC) Commission
member]. A county commission is not necessarily the "public official" vested with
hiring/promotion/advancement authority in relation to all county positions; see CEO 93-1, in
which the Commission found that the law was not violated where a county commissioner's wife
was promoted in the county's solid waste department because under the county's charter the county
manager held the promotion authority. Also, there is support for the position that the law does not
apply in situations where a public official merely has the ability to approve or disapprove (rather
than make) the hire or appointment (AGO 83-13, AGO 73-75, AGO 71-158); however, be very
careful in such situations not to confuse approval/disapproval with attempted delegation of the
authority to hire or appoint.
H. The law applies to paid and unpaid positions (CEO 95-12, CEO 13-1) and to
reappointments (CEO 95-12, CEO 09-15).
I. Certain volunteer emergency medical, volunteer firefighting, and volunteer police
services positions are exempted from the law. CEO 13-1.
J. Agencies may authorize by regulation temporary employment in the event of an
emergency as defined in F.S. 252.34.
K. Son of utility board chairman's selection by general manager/chief executive officer
of board did not transgress the statute; CEO 18-17.

III. DOING BUSINESS WITH ONE'S AGENCY PROHIBITION; BLIND TRUSTS

5
 A. F.S. 112.313(3) contains two prohibitions, the first of which prohibits a public
officer acting in an official capacity, or public employee acting in an official capacity as a
purchasing agent (CEO 09-3), from directly or indirectly purchasing, renting, or leasing realty,
goods, or services (but, maybe, not intangible personal property, CEO 86-26) for the person's own
agency from a business entity of which the person or the person's spouse or child (or any
combination of them) is an officer, partner, director, proprietor, or the owner of a "material
interest." CEO 17-10 found that a stepson is not a "child" within the meaning of F.S. 112.313(3).
Note that certain "private" charter school governing board members and certain "privatized" chief
administrative officers of political subdivisions are now subject to the statute. F.S. 1002.33(26)
and F.S. 112.3136. However, neither the first nor the second prohibition of F.S. 112.313(3)
prohibits a public officer's or public employee's purchase of realty, goods, or services from his or
her political subdivision or an agency thereof [CEO 01-16, CEO 04-5, CEO 07-11 (note 8), CEO
10-24 (note 6)]; nevertheless, such a purchase may be violative of F.S. 112.313(7). Also, note that
a director or officer can come within the prohibition whether or not he or she is paid or
compensated (CEO 97-9, Note 8, CEO 06-26, CEO 10-2); that nonprofit corporations are
"business entities" (CEO 94-17); but that public "agencies" (e.g., state universities, state colleges,
school districts) are not "business entities (CEO 06-2, CEO 15-8).
1. "Purchasing agent" is defined in F.S. 112.312(20).
2. "Business entity" is defined in F.S. 112.312(5); and, under appropriate
circumstances, may or may not include an individual natural person in their personal capacity.
CEO 10-4.
3. "Material interest" is defined in F.S. 112.312(15) to mean the direct or
indirect ownership of more than 5% of the total assets or capital stock of a business entity.
4. "Indirectly" doing business does not include situations where the officer's
or employee's corporation does business with a business entity that is selling to his or her agency.
CEO 78-83, CEO 88-43, CEO 07-2, CEO 08-8 (Question 2). See also CEO 00-21 regarding a
county manager's sale of land to an entity that in turn donates the land to the county; however, this
opinion is of little precedent value in that it is expressly limited to its peculiar facts.
5. A public officer "acts in his or her official capacity" for purposes of the first
prohibition when a board of which he or she is a member (e.g., a county commission) acts
collegially to purchase, rent, or lease, regardless of whether the public officer abstains from voting
on the matter. CEO 90-24, CEO 10-4. It has been found that a city commissioner does not act to
purchase when the city physician, rather than the city commission, acts to purchase. CEO 82-24.
The first prohibition is not violated where the purchase, rental, or leasing by the public agency
occurs before the public officer of the public agency became connected privately to the business
entity. CEO 07-1.
6. See Chapter 2016-263, Section 18, L.O.F., regarding the City of Webster.
B. The second prohibition in F.S. 112.313(3) is against a public officer or employee
acting in a private capacity to rent, lease, or sell any realty, goods, or services to the person's
agency, or to the political subdivision served by the person, or any agency of the political
subdivision. CEO 15-02 found that public school teachers could not sell items to their school,
their school district, or any school within their school district, absent applicability of an exemption.
Note that an "agency of a political subdivision" has been found to include agencies of a county
headed by Constitutional officers elected separately from the county commission (e.g., sheriff,
clerk of court, supervisor of elections, tax collector, property appraiser). CEO 12-13.

6
 1. "Acting in a private capacity" includes situations where one personally is
involved with the sale to the agency or political subdivision (CEO 81-50, CEO 94-3, CEO 12-13),
as well as where one is an officer, director, or owner of more than a 5% interest in a business that
is selling to the agency or political subdivision. CEO 81-2; CEO 09-1. The statute does not apply
to a situation where one merely is an employee of a business entity and personally is uninvolved
with the sale (CEO 94-3); however, see F.S. 112.313(7) below. One does not act in a private
capacity where he or she was a member of the public agency, but held no connection to the business
entity, at the time of the rental, lease, or sale to the public agency. CEO 07-1. One does not act in
a private capacity to rent, lease, or sell to his political subdivision or an agency thereof where his
or her company subcontracts with another company that in turn is renting, leasing, or selling to his
political subdivision or agency thereof. CEO 07-2, CEO 08-8 (Question 2). "Selling" requires a
sale (CEO 08-14). But a "sale" or "selling" has not been limited to cash sales for an express
service; rather, a sale can be present in broader situations involving a valuable consideration (CEO
11-9). CEO 15-6 found that a police officer was not selling services to his city where the city
received services but a third party, and not the city, paid.
2. The statute applies to prevent an agency employee from being a partner in
a law firm which is providing services to the agency. Howard v. Commission on Ethics, 421 So.
2d 37 (Fla. 3d DCA 1982); CEO 08-15. However, one's public employee duties can be increased
for extra pay without violating the statute. CEO 08-15, Question 2. [And see "local government
attorneys" below.]
3. A public officer's or public employee's selling to his agency includes
situations where his or her business entity provides services to a clientele that the agency itself
would be legally obligated (not just voluntarily choosing) to serve but for the proxy actions of the
entity paid for or supported by the agency. CEO 07-11 (note 9), CEO 82-22, CEO 82-9, CEO 15-
14. But was found not to apply in a situation where a school board member's company sold
uniforms to parents of school children, not to the school district or the district's schools. CEO 10-
12. See CEO 15-14 regarding a county employee acting as a private landlord contracting with the
county to provide housing to H.U.D. Section 8 tenants.
C. Donations to one's agency have been found not to fall within the scope of this
prohibition. CEO 82-15; CEO 13-13. CEO 17-12 dealt with a donation by a company connected
to a member of the Board of Governors of the State University System (BOG). Neither does a real
estate sale involving a public official as a real estate professional without a commission (CEO 82-
50), the bringing of a lawsuit (CEO 77-14), nor the condemnation of an official's land by the
official's agency (CEO 78-8). Note that the statute does not address purchases from one's agency
or political subdivision; but also note the possible applicability of F.S. 112.313(7). CEO 82-50,
CEO 01-16, CEO 07-11 (note 8).
D. Exceptions to the prohibition:
1. F.S. 112.313(3) expressly "grandfathers" in certain existing contracts,
including those entered into prior to qualification for elective office, appointment to public office,
or beginning public employment. CEO 96-30; CEO 09-1. However, changes in contracts after a
person assumes a public position are deemed to be new contracts not subject to this exemption
(CEO 85-40 and CEO 84-43), unless the renewals are completely nondiscretionary (CEO 82-10)
or unless the original agreement expressly provides for renewal for a specified period and the
provisions of the contract under the renewal are the same as the provisions of the original
agreement (CEO 85-40). Also, see CEO 02-14, CEO 07-1, CEO 08-8 (Question 1), and CEO 09-
1. Further, the Commission has used F.S. 112.316 to grandfather contracts entered into between

7
qualification for elective office and assumption of office (CEO 95-13); and has used F.S. 112.316
to negate the prohibition in situations involving a "unity of interest" (CEO 06-26, county tax
collectors acquiring integrated tax management system). See CEO 11-17 regarding a hospital
district board commissioner and grandfathering. CEO 14-16 grandfathered a contract predating
the employment of physicians at a hospital district.
2. Other express exemptions are contained in F.S. 112.313(12), as follows:
a. Advisory board members may receive a waiver in a particular
instance by the appointing authority, made in a public meeting after a written disclosure is made
on Commission Form 4A. CEO 16-2. CEO 16-4 found the "appointing authority" of a particular
county advisory board member to be the county commission. Note that advisory status requires a
detailed examination of the attributes of the governmental body, and is not controlled by any
perceived insignificance of the body (CEO 96-19, county fine arts council not advisory); note that
it has been found that the whole of the body's attributes and operations must be advisory, note
merely some of its nature (CEO 10-24); and note that for purposes of the exemption in F.S.
112.313(12), but not for purposes of financial disclosure under F.S. 112.3145, that an advisory
board need only be "solely advisory," irrespective of the amount of its budget or authorized
expenditures (CEO 77-178). See also CEO 06-24, in which a county transportation service board
was found not to be an advisory board.
b. At the local government level, when the business is to be transacted
by rotation among all qualified suppliers, the official's business may be placed on the rotation list.
"Qualified" means that reasonable, but not unduly restrictive, conditions may be placed on the
suppliers by the purchasing agency, such as the ability to supply merchandise of acceptable quality
or specifications. F.S. 112.313(12)(a). CEO 89-64 and CEO 92-27. The use of selection criteria
that include the volume of current and prior work done with a firm does not constitute a "rotation
system." CEO 96-23. See CEO 01-15 and CEO 11-9, regarding providers from outside of the
political subdivision being included in the rotation.
c. When the business is to be transacted through a sealed, competitive
bidding process, the official's business may submit a bid and be awarded the contract. F.S.
112.313(12)(b). However, the official must file a written disclosure prior to or at the time the bid
is submitted (Commission Form 3A), and must not participate in the process. In CEO 10-5, the
Commission found that a water management district governing board member's earlier general
involvement regarding a district real property did not equate to "participation in the determination
of the bid specifications" regarding a subsequent lease of the property. And see CEO 07-23,
applying F.S. 112.316 to negate a conflict in a "piggy-back" contract situation not technically in
compliance with the exemption. Contracts awarded under the Consultants' Competitive
Negotiation Act (F.S. 287.055) do not constitute a sealed bidding process. CEO 81-28 and CEO
01-15. Nor do RFPs (CEO 89-48). However, while the exemption will insulate one from conflicts
based upon the business between the official's public agency and the provider of goods, services,
or realty to the public agency, it will not exempt conflicts arising independent of the competitively
bid business. CEO 96-7. However, note that F.S. 1001.42(12)(i), a provision of law outside of
the Code of Ethics and not administered by the Commission on Ethics (a provision of the Florida
K-20 Education Code), prohibits school board members and school superintendents from having
certain interests regarding contracts for materials, supplies, or services. AGO 06-50.
d. Legal advertising in a newspaper, utilities service, and passage on a
common carrier are exempted. F.S. 112.313(12)(c). Legal advertising means only that advertising
required by law. CEO 90-57. Utilities service includes telephone service (CEO 83-7), but does

8
not include bulk fuel oil (CEO 95-8) or utility location services (CEO 11-12, note 7). The
exemption for passage on a common carrier applies to purchase of tickets by the agency directly
from the carrier, but does not apply to purchases from a travel agency (CEO 80-1).
e. Emergency purchases are exempted, but only when made "in order
to protect the health, safety, or welfare" of the citizens. F.S. 112.313(12)(d).
f. When the official's business is the only source of supply within the
political subdivision, an exemption is provided, as long as disclosure is made prior to the
transaction, on Commission Form 4A. F.S. 112.313(12)(e). A television station has been found,
in a certain context, to be a sole source of supply. CEO 00-10. Real property owned by a
corporation in which an assistant principal has a one-third interest has been found, in a certain
context, to be a sole source of supply of real property for construction of new schools. CEO 06-
28. The purchase of parcels for road right-of-way can be a series of sole source purchases. CEO
91-31. In CEO 09-18, the exemption was found to be inapplicable to a relationship between a city
and a developer, where the relationship involved interests of the developer beyond its provision of
sole source items to the city. In CEO 10-4, realty adjacent to a county park was found to be a sole
source item. CEO 11-02 found a landowner employing a water management district governing
board member to be a sole source of a water project agreement. CEO 10-17 found a corporation
employing a reserve deputy sheriff to be the only source of supply for computer applications that
enable information sharing between police agencies. CEO 16-7 addressed growth modeling as a
sole source item. CEO 16-8 addressed the sole source exemption in the context of a county
commissioner being employed by a company providing vehicle parts to the county. CEO 18-03,
high-visibility badge holders. CEO 18-16, electronic advertising (electronic billboards). As with
the rotation exemption, the sole source exemption is not available to State-level agencies.
g. Transactions not exceeding $500 in the aggregate in a calendar year
may be made between the agency and the official's business. F.S. 112.313(12)(f).
h. A municipal, county, or district public official may be a stockholder,
officer, or director of a bank acting as a depository of the agency's funds, provided that the
governing body of the agency (e.g., city commission, county commission, school board, water
management district board) has determined that the official has not favored that bank over other
qualified banks. F.S. 112.313(12)(g), CEO 83-48, and CEO 83-81. Note that this applies only
when the bank will be acting as a depository; other banking functions, such as loans, are not
encompassed by the exemption.
i. The transaction is made pursuant to F.S.1004.22 or F.S. 1004.23 and
is specifically approved by the president and the chair of the university board of trustees. F.S.
112.313(12)(h).
3. When the public officer or employee has and had no influence or public
responsibility in relation to the business between the agency and the private business entity with
which the officer or employee is connected, the Commission has viewed F.S. 112.316 as negating
the literal language of the prohibition in F.S. 112.313(3). CEO 76-38. As a result, members of
subordinate boards of a city or county would not, in certain circumstances, be prohibited from
doing business with the city or county, so long as their board had nothing to do with the transaction
[see, for example, CEO 81-66, CEO 88-17, and In re Stephen Huie, 13 FALR 1852 (Comm. on
Ethics 10/26/89)] and so long as no other conflicting factors existed (see CEO 05-14, member of
personnel board leasing space to county where member might be tempted to favor county in issues
before the board). Also, via F.S. 112.316, a county commissioner is not prohibited from serving
as a county-funded indigent defense counsel specially appointed by the court (under a scheme set

9
prior to his becoming a commissioner), although the statute would not legitimize the
commissioner’s contracting with the county as a special contract public defender (CEO 02-6).
Further, see CEO 94-19 (city police officers receiving rent reduction in exchange for providing
security services), CEO 09-3 (city fire department personnel taking courses from fire lieutenant's
company), and CEO 10-23 (city tennis professional employee also operating pro shop). See CEO
11-23, finding no prohibited conflict for public district school board members, the district
superintendent, and district employees occasioned by their uncompensated service as board
members of charter schools, where the district school board applied to itself for the charter school.
CEO 18-04 applied F.S. 112.316 to a consolidated government (Jacksonville) city council member
selling services to the local school board. CEO 18-05, city planning and zoning board member
and F.S. 112.316. See CEO 14-24, regarding application of F.S. 112.316 to negate conflict where
a certain county employee contracted with the county to be an independent contractor for the
county after her retirement. CEO 14-11 and CEO 14-12 found a "unity of interest" to negate
conflict under F.S. 112.313(3), via application of F.S. 112.316, regarding uncompensated service
for a county economic development council (EDC) receiving funding from the county. CEO 14-
15 applied F.S. 112.316 to negate conflict where certain city police department employees
provided equestrian services to the city.
E. F.S. 112.31425 (new, via Chapter 2013-36, L.O.F.) provides that if a public officer
holds a beneficial interest in a qualified blind trust as described in the statute, he or she does not
have a conflict of interest prohibited under F.S. 112.313(3) or (7) or a voting conflict of interest
under F.S. 112.3143 with regard to matters pertaining to that interest. Essentially, the trust must
be set up in a certain manner, including making documentation, disclosures, and filings, and the
public officer must act in accord with the statute in relation to the trust and the trustee, in order to
receive the conflict of interest and voting conflict protections. CEO 13-14.
F. F.S. 1002.84(20) is an additional provision relating to contracts involving members,
members' relatives, and employees of early learning coalitions.

IV. CONFLICTING EMPLOYMENT AND CONTRACTUAL RELATIONSHIPS

A. F.S. 112.313(7) prohibits a public officer or employee (but not a mere candidate for
office, CEO 09-20, and not a relative of the public officer or employee, CEO 11-04) from having
a contractual relationship or employment with an agency or a business entity that is either subject
to the regulation of, or doing business with, the officer's or employee's agency. Note, as regarding
F.S. 112.313(3), applicability of the statute to "private" charter school board members and to
"privatized" chief administrative officers of political subdivisions. F.S. 1002.33(26), F.S.
112.3136.
1. "Employment" requires that one be compensated, or receive some
consideration. CEO 76-21; CEO 80-29. "Employment" is not limited to a master/servant
relationship, but also includes being an owner, partner, sole proprietor of a business, or self-
employed person (CEO 84-95, CEO 16-12), includes compensated directors of nonprofit entities
(CEO 85-89), and can include a real estate sales associate "hanging" his license with a broker
(CEO 12-15). Refusal, in advance and in writing, of compensation has been held to negate the
required element of compensation (CEO 00-23; CEO 08-22).
2. Whether a "contractual relationship" exists has been governed by the
substantive law of contract.

10
 a. It has not been limited to contracting parties, but has been found to
include third party beneficiaries. CEO 76-85.
b. Sales of goods or realty, the provision of services for compensation,
the ownership of shares of stock (CEO 99-13, CEO 11-05), the holding of stock options (CEO 05-
18, note 8), and the "hanging" of a real estate sales associate's license (CEO 12-15) have been
found to constitute contractual relationships.
c. Members (partners, shareholders, associates), but not "of counsel
attorneys," of law firms have contractual relationships with each client of the firm regardless of
whether a particular attorney performs or supervises work for a particular client (CEO 80-79, CEO
94-5, CEO 96-1, CEO 03-7, CEO 04-9, CEO 10-20, CEO 10-24, CEO 16-9); but accountants have
not been found to have similar "firm-based" contractual relationships (CEO 11-15). Proprietors
of unincorporated insurance agencies have been found to hold contractual relationships with each
client of the insurance agency (CEO 94-10). But, in CEO 09-19, under particular facts, it was
found that an insurance agent's contractual relationship with a developer ended with the renewal
of a policy she brokered for the developer.
d. Uncompensated service has been found not to constitute a
contractual relationship (CEO 06-26), even if travel and lodging expenses are received (CEO 93-
23, CEO 19-03); but see the Order Finding Probable Cause in In re TRIEU NGUYEN,
Commission on Ethics Complaint No. 15-011, under a specific factual situation involving
reimbursement for travel expenses. However, lack of compensation is not controlling if
consideration or substitutes for consideration are present, or if services under professional
licensure (e.g., insurance agent licensure, real estate broker licensure, engineer licensure,
landscape architect licensure) are involved (CEO 95-28, CEO 08-7, CEO 08-8, CEO 11-6). And
note that a president of a voluntary association can have a conflicting contractual relationship
(CEO 06-12), as can an officer or director of a voluntary association (CEO 08-7, Question 2);
however, mere membership in the association or service on one of its committees likely would not
support the existence of a conflicting contractual relationship. CEO 08-7; CEO 08-22. An
uncompensated director of a nonprofit corporation, who is not a member (analogous to a
shareholder) of the corporation, was not found to hold a contractual relationship with the
corporation (CEO 10-2, CEO 14-12). See CEO 13-26 regarding a State university medical school
department chair also involved with a private, nonprofit research foundation. And see CEO 09-7
(county commissioner serving on economic development council). A member of a limited liability
company (LLC) has a contractual relationship with the company. CEO 08-7; CEO 12-2. Less
than full-time work has been found to constitute a contractual relationship. CEO 12-9. Marriage
does not constitute a contractual relationship between the husband and wife. CEO 90-77. The
statute has been found to address contractual relationships of the public officer or employee, not
those of his or her spouse (CEO 12-2, CEO 15-11) or child (CEO 14-11).
e. The holding of an office (e.g., a county/city commission seat, school
board seat, state college trustee) has been found not to be employment or a contractual relationship,
even if it is a compensated position. CEO 92-39; CEO 15-8. And the mere holding of a
government-issued (DBPR) license was found not to constitute employment or a contractual
relationship. CEO 15-4.
f. One does not hold a contractual relationship with a company merely
because one's corporation or company holds a contractual relationship with the company. CEO
08-23; CEO 14-27. However, CEO 14-02 found that the statute applied to prohibit a city
commissioner's private performance of talk show services for a radio station doing business with

11
the city, finding that the station sought the personal services of the commissioner and paid him
through his firm; nevertheless, the opinion went on to find that the firm's provision of consulting
services to the station, without the station seeking the commissioner's personal services and
without his agreeing to perform personal services, was not prohibited. CEO 14-14 found that a
city councilperson's employment with a bank did not mean that he also held employment with a
company (which was doing business with the city) owned by a member of the bank's board of
directors.
3. Past or possible future contractual relationships have been found not to
violate the statute; the contractual relationship or employment must exist simultaneously with the
other elements of the statute. CEO 88-11; CEO 08-14; CEO 12-3.
4. A "business entity" is defined in F.S. 112.312(5). A private university is a
business entity (CEO 99-11), as is a nonprofit youth center (CEO 78-18) and a
foundation/nonprofit corporation/tax-exempt organization (CEO 07-11). Different companies
have been found to be separate business entities even when one company has an interest in or owns
shares in the other company (CEO 11-13, regarding a healthcare executive/state university
trustee/teaching hospital). CEO 13-5. Further, parent and subsidiary corporations have been found
to be separate business entities (CEO 86-12, CEO 05-8), except for situations involving holding
companies or subsidiaries where the parent owns only the asset of the subsidiary (CEO 94-5, CEO
99-13, CEO 03-1, CEO 09-2, CEO 11-05). Even an individual, such as a self-employed person
privately providing tutoring services, can be a “business entity” (CEO 04-17, CEO 11-14);
however, natural persons who merely own personal or real property are not necessarily “business
entities” (CEO 92-2; CEO 82-88; CEO 07-18, note 4; CEO 08-12).
5. "Agency" is defined in F.S. 112.312(2). The definition does not necessarily
include the entire department or political subdivision of the officer or employee, but rather refers
to the lowest departmental unit within which a public officer's or employee's influence might
reasonably be considered to extend. CEO 93-31 and CEO 99-7. Determining the agency of the
officer or employee can be critical to an analysis of how the statute applies. For example, the
agency of some appointed board members has been found to be that board (CEO 90-7), while the
agency of other board members, particularly boards with only ad hoc advisory authority, may be
the unit of government they are advising, as well as their particular board (CEO 94-36, CEO 99-
2, CEO 99-11, CEO 16-2, CEO 16-9). A city planning board is a separate agency from the city
commission (CEO 01-16; CEO 11-6). A city's downtown development review board was not
found to be a separate agency from its economic development commission (CEO 10-24).
However, a city manager's agency was found to be much more of city government than the city
manager's office (CEO 96-15). The agency of a county personnel board member is the board (CEO
05-14). The agency of a county transportation service board member has been found to be the
board (CEO 06-24). The agency of a county board of adjustment member was found to be the
board (CEO 88-17). A school board member's agency does not include the county value
adjustment board where he or she is not one of the two school board appointees to the board and
where the remaining members of the school board could be asked to substitute for the named
appointees but seldom have (CEO 02-5). A public school teacher’s or principal’s agency is his or
her school, not the whole of the school district (CEO 04-17, CEO 10-15, CEO 16-12). The agency
of an employee of the operations department of a school district's central office was found to be
the operations department (CEO 14-28). A school board member's agency has been found to be
the entire school district (CEO 14-21; CEO 14-27). In CEO 08-1, the agency of a city councilman
for purposes of F.S. 112.313(7) was determined to be the city council, and in CEO 12-13 the

12
agency of a county commissioner was determined to be the county commission; but note that F.S.
112.313(3), see above, can apply regarding the whole of an officer's or employee's political
subdivision. CEO 15-6 found the agency of a police officer to be the city police department, not
the city commission. The whole of a water management district has been found to be the agency
of a water management district engineer (CEO 96-3). At the State level, one's agency may only
be one's bureau (CEO 92-48, CEO 15-4) or one's district (CEO 87-20, CEO 01-7), and not the
whole of an executive department. But note that the agency of an employee of the State Agency
for Persons with Disabilities (APD) is the entire APD. CEO 05-6, CEO 05-7. The agency of a
member of the Florida Statewide Passenger Rail Commission has been found to be the
Commission rather than FDOT. CEO 10-20. The agency of an employee of a county health
department has been found to be the employee's health department and not health departments
within other counties. CEO 98-20, CEO 90-65. CEO 14-05 found the agency of the general
counsel of the Office of Financial Regulation (OFR) to be OFR. CEO 14-06 found the agency of
the general counsel of the Department of Business and Professional Regulation (DBPR) to be
DBPR. CEO 15-14 found the agency of a certain county employee to be the administrative
division of the county's community services department.
6. A business entity is "subject to the regulation of" an agency when the
business' operations or modes of doing business are subject to the control or authority of the
agency. CEO 74-8. In CEO 09-18, a corporation which had entered into a development agreement
with a city was found to be "subject to the regulation of" the city council, due to the many terms
and conditions contained in the agreement. Occupational licensing for revenue purposes is not
"regulation." CEO 79-82. Incidental or passive governmental influence, such as the enactment of
ordinances that affect a broad number of people, does not constitute "regulation." CEO 78-59.
County phosphate mining ordinances have been held not to constitute "regulation" by county
commissions of mining companies. CEO 00-14. In some situations, a city council or a county
commission may not regulate a developer, even though the city's board of adjustment and building
department may. CEO 08-1, CEO 08-7. However, in CEO 11-6, the Commission found that
activities of a city planning and zoning board did not constitute "regulation"; and see CEO 11-16.
The enforcement of laws of general applicability does not constitute "regulation." CEO 91-22,
CEO 04-14. However, an agency may be subject to the regulation of another agency, as in CEO
97-03, where the State Board of Community Colleges was found to regulate community colleges.
A city building and planning department regulates licensed contractors doing business in the city
(CEO 96-15), but a city commission usually does not (CEO 99-7). A city manager's ministerial
(nondiscretionary) function to sign a subdivision plat has been found not to constitute regulation
of a developer (CEO 76-205, Question 2). Annexation constitutes neither "regulation" nor "doing
business." CEO 03-7. A waiver of taxes or granting of a similar economic incentive by a city's
economic development commission was found not to constitute regulation or the doing of
business, but café permitting or similar functions by its downtown development review board were
found to constitute regulation (CEO 10-24). A port authority regulates a shipping company
operating at the port (CEO 03-17), the interests of a shipping agent (CEO 08-5), and a company
moving cargo through port terminals (CEO 13-11). A county manatee rule review committee (an
ad hoc advisory body) does not exercise regulatory authority (CEO 04-14). A city housing
authority does not regulate a state university where the two cooperate to carry out tutoring of at-
risk children under a federal program (CEO 06-2). CEO 97-7 found that a charter school is subject
to the regulation of its sponsoring school district; but, in a particular context, CEO 09-23 used F.S.
112.316 and "the spirit of" F.S. 112.313(15) to negate a conflict of a school board member

13
employed as an adjunct faculty member at a State college operating a charter school approved by
the school board. A franchise has been found to be "regulation," in addition to constituting "doing
business" (CEO 12-9). The Florida Virtual School was found not to be subject to the regulation
of a local school district. CEO 13-22. In CEO 12-21, a county was not found to regulate a
municipality. Note that possible future regulation is not "regulation" under the statute; one's
contractual relationship must occur at the same time as the regulatory relationship (CEO 90-65).
7. A business entity is "doing business with" an agency where the parties have
entered into a lease, contract, or other type of arrangement where one party would have a cause of
action against the other in the event of a breach or default. CEO 86-24, CEO 07-11, CEO 11-14,
CEO 11-15, CEO 12-15. In contrast, CEO 15-01 found that a city's donation without obligation
of in-kind services to a chamber of commerce did not constitute "doing business"; see also CEO
17-12 (donation/member of Board of Governors of State University System). CEO 17-15
concerned a donation (not a prohibited conflict) of property by a city to a charter school for which
a city commissioner served as an attorney, or, in the alternative, a sale (prohibited conflict) of the
property. CEO 14-04 found that a business entity seeking a contract would not be "doing business"
with an agency until the agency awarded the contract to the company. Note that the public officer
or public employee personally does not have to be involved on the private side of the business
between his private employer and his public agency in order for the "doing business" element to
be present. CEO 10-7. A public officer or employee does not hold employment or a contractual
relationship with a company that is doing business with his or her public agency merely because a
company of which he or she is an owner or officer subcontracts with the other company (CEO 88-
43, CEO 07-2, CEO 11-12, CEO 11-18, CEO 12-8); however, see CEO 14-02, regarding a city
commissioner whose personal services for a radio station were sought "through his firm." The
company of a school board member was not found to be doing business with the school district
when it sold uniforms to parents of school students but not to the district or the district's schools,
provided no solicitation or pressuring of school personnel occurred. CEO 10-12. The Commission
has found that a direct support organization is doing business with the agency (e.g., college,
university) which created it (CEO 89-36, CEO 11-15). A lawsuit between a business entity and
an agency does not constitute "doing business" (CEO 77-14); nor does the mere donation of
property to an agency (CEO 82-13) or from an agency (CEO 04-5, Question 3, and CEO 04-6).
Agreements between governmental entities for the provision of services generally do not constitute
"doing business" [CEO 76-2, CEO 81-5, CEO 04-9, Question 3, CEO 06-2, CEO 12-21, (CEO 13-
22, agreement between county school district and Florida Virtual School)], CEO 19-02, but the
extension of a grant from one agency to another may (CEO 77-65). In CEO 08-6, it was
determined that a sheriff's office's contracting with a city to provide municipal law enforcement
services did not constitute "doing business," where a city commissioner's employment with the
sheriff's office was not connected to the sheriff's provision of services to the city. The existence
of a warranty on a sheriff's mobile command post constitutes "doing business" (CEO 06-25), as
does the relationship between a charter school and its sponsoring school district (CEO 97-7). A
city was found to be "doing business" with a corporation by their entry into a development
agreement with one another (CEO 09-18). A franchise has been found to constitute "doing
business" (CEO 12-9). Receiving funds from a CRA through its commercial loan subsidy program
has been found to constitute "doing business," and thus conflicting for CRA board members. CEO
12-7. Further, in CEO 12-7, the Commission found that the special voting conflict language
applicable to CRAs for purposes of F.S. 112.3143 did not operate as an exemption to a conflict

14
under F.S. 112.313(7). However, see CEO 12-14 regarding redevelopment area board members,
as opposed to CRA members.
8. Examples of conflicts under this prohibition include the following: city
commissioner prohibited from being employed by brokerage firm if firm is selected as underwriter
for one or more city bond issues (CEO 85-29); county commissioner prohibited from employment
with national brokerage firm contracting with county for underwriting services for proposed bond
issue (CEO 88-80); city commissioner employed by two city franchisees [Gordon v. Commission
on Ethics, 609 So. 2d 125 (Fla. 4th DCA 1992)]; and health facilities authority's employee's law
firm providing services to authority (CEO 08-15, Question 1).
9. See Chapter 2016-263, Section 18, L.O.F., regarding the City of Webster.
B. F.S. 112.313(7) also prohibits a public officer or employee from having a
contractual relationship or employment that will create a "continuing or frequently recurring"
conflict of interest, or that would "impede the full and faithful discharge" of public duties.
1. The statute is grounded in the principle that one cannot serve two masters.
It does not require proof that the public officer or employee has failed to perform his
responsibilities or has acted corruptly; the statute is entirely preventative in nature, intended to
prevent situations in which private considerations may override the faithful discharge of public
responsibilities. It is concerned with what might happen, with the temptation to dishonor. See
Zerweck v. Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982), finding the statute not
unconstitutionally vague.
2. An impediment to public duty can be based on a single incident or
transaction. For example, the Commission has concluded that representing a client before the
board of which one is a member interferes with the full and faithful discharge of one's public duties
and, where such representations are frequent, presents a continuing or frequently recurring conflict.
CEO 77-126, CEO 78-86. The same conflict would exist when another member or employee of
the public officer's professional firm undertakes to represent a client before the officer's board
(CEO 88-40, CEO 11-6, CEO 15-3), or where a member or employee of a law firm of which the
public officer is "of counsel" seeks to represent a client before the officer's board [CEO 96-1, aff'd
by PCA sub nom. Korman v. State Commission on Ethics, 710 So. 2d 553 (Fla. 1st DCA 1996].
Also, an appearance by one's firm before one's public board, not for a client but for one's own
firm's development plans, has been found to be conflicting (CEO 11-6). And note that such a
conflict has been recognized to exist if the public officer's firm represents the client in the matter,
regardless of whether the firm's work includes an appearance before the public officer's assembled
board or the work stops short of such an appearance. CEO 10-24; CEO 11-6. And see CEO 09-
10. But see CEO 07-13 regarding other members of a city commissioner's law firm representing
clients before city boards other than the city commission. See CEO 12-21 regarding a county
commissioner's law firm serving as special counsel to a municipality located within the county.
CEO 17-04 concerned a member of the City of Jacksonville's Ethics Commission being a member
of a law firm representing a client in litigation involving the City and independent agencies of the
City. However, commentary in a private capacity to one's own public board regarding delivery
of a product has been distinguished from prohibited representation of a client before one's public
board. CEO 07-2, CEO 08-8 (note 6). Also, even though a conflict of interest would be created
were a State Senator to personally represent a client before the Legislature, a conflict would not
be created were another attorney of a law firm with which the Senator has an "of counsel"
relationship to represent a client before the Legislature, provided certain conditions are adhered
to. CEO 03-3. See CEO 05-10 regarding the law firm of a member of the Florida Building

15
Commission Technical Advisory Committee representing clients regarding the Commission, the
Committee, or the Accessibility Advisory Council [however, the result of this opinion may be
affected by F.S. 553.74(5)].
3. This prohibition can interface with other aspects of the Code, such as F.S.
112.313(8), regarding the temptation to disclose or use information not available to the general
public and gained by reason of one's official position (CEO 92-18, deputy clerks of court
developing software for sale to other clerks' offices having access to proprietary information via
their public positions; CEO 11-14, district school board employee privately marketing computer
workbook tool).
4. The statute would prohibit a county commission candidate from entering
into a binding contract containing campaign promises and a penalty clause with a political action
committee. CEO 96-24 and CEO 96-25. However, statute does not prohibit a State Senator’s
filing and supporting general and special legislation of interest to his private law client, where
Senator is not compensated in any way by the client for his efforts as a member of the Legislature.
CEO 03-11. But the statute would prohibit a State Representative from serving as president of the
Florida Association of Realtors (CEO 06-12) and it would prohibit a State Representative from
consulting with a waste management company as its manager of community and municipal
relations (CEO 06-19). And see CEO 09-8 regarding a State Representative's working privately
to cultivate, for his private employer, clients employing Legislative lobbyists. It would prohibit a
county probation officer from being employed by an entity that is providing services to
probationers. CEO 96-28. Absent aggravating facts, it would not prohibit Fish and Wildlife
Conservation Commission law enforcement officers from providing security services to private
landowners. CEO 07-25. It would prohibit a city mayor from contracting to promote charter
schools with a subsidiary of a company doing business with the city. CEO 01-9. It would prohibit
a district school board member from being employed as an assistant principal at a charter school
sponsored by the school board (CEO 06-23); or from being president and owner of a corporation
providing career preparation coaching to students of a charter school (CEO 10-10). It would
prohibit a public school teacher from privately tutoring for pay his or her own public school
students; but it would not, under certain circumstances, prohibit the teacher’s private tutoring of
other public school students. CEO 04-17. While the statute would not prohibit a teacher from
operating, for a fee, a summer art camp, it would prohibit the teacher's contracting with parents of
students who are in the teacher's classes to have their children participate in the camp. CEO 10-
15; see, also, CEO 12-23. CEO 13-21 (teacher secondarily employed providing programs to
students) found a prohibited conflict if the programs were provided privately, but not if the teacher
performed extra school district public employee duties for extra public salary in providing the
programs; and CEO 15-02 concerned teachers selling items to students in their classes or to the
students' parents. CEO 16-12 addressed a public school teacher's employment as an attorney,
including in lawsuits involving the teacher's school board/district and others. And see CEO 09-3
(city fire department personnel taking courses from fire lieutenant's company). Also, it would
prohibit a sheriff’s administrative/disciplinary review board member from serving as president of
a police union local. CEO 04-13. And, it has been found to prohibit a county commissioner from
being employed by the same county's sheriff's office. CEO 12-12. The statute would not prohibit
a trustee of a city's pension boards (who personally is not a member of any pension plan/system of
the city) from being employed as the city's finance director. CEO 06-16. It would prohibit a
member of the Florida Real Estate Commission from being employed as an instructor at a real
estate school (CEO 06-9); however, no prohibited conflict was found where a member of a hospital

16
district board, acting in his private capacity as a real estate professional, received a commission
regarding the purchase of a home by district personnel, where the member did not solicit the
business (CEO 07-18). It would prohibit a DCF contract manager from being employed by a
subcontractor of a nonprofit corporation contracting with DCF. CEO 07-9. Under certain
conditions, the statute was not found to prohibit a city police officer's privately locating and
recovering chattel property for lenders (CEO 08-16); but was found to prohibit a police officer's
conducting surveillance in unfaithful spouse cases and employee theft cases (CEO 13-16). It was
not found, under certain conditions, to prohibit a school board member's company from selling
school uniforms to parents of students (CEO 10-12). CEO 14-21 opined on a school board
member's employment with a nonprofit literacy foundation. CEO found a prohibited conflict
would be created were a school board member's company to engage teachers from her school
district to provide private tutoring, were it to provide services to students of her district, or if it
were to provide STEM training using teachers of her district or to students of her district. The
statute can apply when a public employee inspects his own private work or when another employee
of his public agency inspects his private work (CEO 87-12, Question 2); but determining the scope
of one's "agency" and possible application of F.S. 112.316, Florida Statutes, should be a part of
the analysis in a given matter, especially if the other employee is not subordinate in his public
capacity to the employee with the private endeavor. See CEO 11-03, regarding a State
Representative being engaged as an expert witness by a law firm representing the Department of
Financial Services in litigation. In CEO 11-05, under the circumstances presented, the
Commission found that a Governor's passive investments in large national corporations and
investment funds did not create a prohibited conflict under the statute; and the Commission found
that the Governor could place non-conflicting investments in a blind trust without there being a
prohibited conflict, even if the trust later invested in a Florida company in which the Governor
would be prohibited from directly owning an interest. CEO 12-18 found that a DCF supervisor
for the food stamp program would not have a prohibited conflict due to her part-time employment
at a gas station/convenience store that accepts food stamps. CEO 12-8 found that a school board
budget advisory committee member who consulted, through his LLC, with a charter school
company did not, under the particular facts of the opinion, have a prohibited conflict under the
second part of F.S. 112.313(7)(a). CEO 14-04 found a conflict would be created under the second
part of the statute were a FDOT employee whose former private employer held his pension funds
to be involved in the selection process for award of a FDOT contract sought by the former
employer. CEO 14-07 found, under particular circumstances, no prohibited conflict where the
chief risk officer of Citizens Property Insurance Corporation recommended actuarial services to
his former private clients. CEO 15-6 found that a prohibited conflict would be created were a city
police officer's business to serve as a receiver for properties encumbered by city code enforcement
liens. CEO 15-14 found a prohibited conflict where a county employee served on a committee
which determined whether current or prospective tenants of the employee's H.U.D. Section 8 rental
business were Section 8 eligible; but did not find a prohibited conflict based on simple,
nondiscretionary county employee duties. CEO 16-9 determined that a prohibited conflict would
be created were a member of a county human services advisory board to represent a client in a
lawsuit against a nonprofit entity whose funding request had to come before the board. CEO 17-
05 found that a prohibited conflict would be created were a city commissioner's company to have
city vendors advertising on its website.

17
 5. The Commission on Ethics has wide discretion to interpret the statute, and
courts must defer to its interpretation unless clearly erroneous. Velez v. Commission on Ethics,
739 So. 2d 686 (Fla. 5th DCA 1999).
6. Issues of use of leave time from one's public position to attend to one's
private business endeavor and whether a public employee has adequate time to perform both his
public and private jobs have been found not to be governed by the statute. CEO 86-81, CEO 90-
65.
C. Exemptions to the Application of 112.313(7):
1. When the agency is a special tax district created for the purpose of
financing, constructing, and maintaining improvements in the district, or is a Ch. 298 F.S. water
control district, employment or contracts with the business entity developing the property will not
be prohibited, per se. However, the district must be created by general or special law, as opposed
to local ordinance. CEO 84-4. F.S. 112.313(7)(a)1.
2. When the agency is a legislative body and the regulatory power exercised
over the business entity resides in another agency or is exercised strictly through the enactment of
laws or ordinances, employment and contracts with the business entity are not prohibited. F.S.
112.313(7)(a)2. CEO 91-1. CEO 08-20 (state senator in private equity firm). CEO 09-8 (Florida
House member). CEO 09-13 (House member employed by Office of Criminal Conflict and Civil
Regional Counsel).
3. When legislative act or local ordinance requires or allows certain public
officers or employees to engage in certain occupations or professions in order to be qualified to
hold their public positions, then 112.313(7) does not prohibit the officer or employee from
practicing in that occupation or profession. F.S. 112.313(7)(b). For example, in CEO 84-63, where
a port authority member was required to be a representative of business entities doing business
with or at the port, the member's employment as vice president of a shipping company at the port
was considered exempted; but see CEO 08-5. In Brevard County v. Commission on Ethics, 678
So. 2d 906 (Fla. 1st DCA 1996), the court affirmed CEO 95-27, an opinion concluding that the
county's firefighters would be prohibited from being employed by local ambulance companies and
that F.S. 112.313(7)(b) would not allow the County to exempt its firefighters' employment from
the prohibition of F.S. 112.313(7)(a). See also CEO 01-10 [F.S. 112.313(7)(b) not applicable to
Florida Building Commission member]. Regarding architectural review board members, see CEO
04-1. CEO 17-01 found F.S. 112.313(7)(b) to apply to board members of a city employees'
retirement plan. See F.S. 627.351(6)(c)4 regarding certain Citizens Property Insurance
Corporation board members. F.S. 20.61(3) may bring one member of the Technology Advisory
Council within the scope of F.S. 112.313(7)(b).
4. An elected public officer may be employed by a "501(c)" tax-exempt
organization that contracts with the officer's agency, as long as the officer's employment is not
compensated as a result of the contract, the officer does not participate in the agency's decision to
contract, and the officer abstains from voting on matters involving the officer's employer and
otherwise follows the voting conflicts law. F.S. 112.313(15), CEO 97-05, CEO 01-4, CEO 07-11,
CEO 10-16, CEO 15-01, CEO 18-06 (county commissioner employed by food bank receiving
grant funding from county). Note that this exemption only applies to "employment"; it does not
apply to "contractual relationships" (CEO 98-11, note 2). Under particular facts, CEO 09-23
applied the exemption, via F.S. 112.316, to a school board member's employment with a State
college [not a 501(c) organization] which operated a charter high school approved by the school
board.

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 5. The exemptions contained in F.S. 112.313(12) (noted above) are applicable
to exempt conflicts under 112.313(7): for advisory board members (CEO 16-2, CEO 16-9) [but
see above under F.S. 112.313(3) regarding how to determine whether a given board is or is not
"advisory"]; depositories of public funds; passage on a common carrier; contracts awarded by
sealed, competitive bid; emergency purchases; legal advertising in a newspaper; aggregated
transactions not exceeding $500; and utilities service (CEO 11-12, note 7). And, at the local
government level, business/work handled through a rotation system (CEO 11-9) or sole sources of
supply.
6. When a public officer or employee privately purchases goods or services
from a business entity which is doing business with his or her agency, the transaction is exempted
from 112.313(7) if the purchase is "at a price and upon terms available to similarly situated
members of the general public." F.S. 112.313(12)(i).
7. Similarly, an officer or employee may purchase goods or services from a
regulated business when the price and terms are available to similarly situated members of the
public and full disclosure of the relationship is made prior to the transaction to the State agency
head or local governing body (e.g., county commission). F.S. 112.313(12)(j). Found not to apply
when officer's corporation, rather than officer as a natural person, purchased limousine service.
CEO 08-23.
8. The Commission has applied F.S. 112.316 to "grandfather" in employment
or contractual relationships with business entities doing business with the officer's or employee's
agency, usually when both the employment or contractual relationship and the business
relationship with the agency predate the officer's holding office or the employee's public
employment. CEO 82-10, CEO 96-31, CEO 96-32, CEO 02-14, CEO 02-19 (employee county
attorney), CEO 08-4 (note 6), CEO 09-1. And see CEO 09-20, in which it was found that
grandfathering was available to negate a conflict where the business was entered into during a
prior office holding, during which an official held no employment with the company, and where
the official then left office, followed by his employment with the company and his subsequent
election and taking of office again. But renewals/extensions/amendments, after one takes office,
of a grandfathered contract can violate the statute (CEO 02-14, CEO 08-8, CEO 09-1), as can entry
into new contracts after one takes office (CEO 09-20, CEO 10-16). And the Commission also has
applied F.S. 112.316 to negate a conflict in a "piggy-back" contract situation. CEO 07-23.
However, F.S. 112.316 is not necessarily applicable, via "grandfathering," to negate a conflict
under the second, as opposed to the first, part of F.S. 112.313(7)(a). CEO 97-15. See CEO 11-17
regarding a hospital district board commissioner and grandfathering. CEO 14-16 grandfathered a
contract regarding physicians who would become employees of a hospital district. Also, as with
situations under F.S. 112.313(3), F.S. 112.316 may apply to negate conflict under F.S. 112.313(7)
occasioned by matters in which a public officer or employee played and plays no material public
role regarding his or her business or secondary employer (but note that application of F.S. 112.316
can be limited, especially regarding governing board members and other high-ranking personnel
or "central office" personnel, CEO 12-9, CEO 12-15). See, for example, CEO 01-12 and CEO 02-
6 [county commissioner serving as county-funded, court-appointed indigent defense counsel (but
not as special public defender contracting with county), under scheme set prior to his becoming a
commissioner]; see CEO 03-9 (county parks and recreation department employees providing on-
site security for county parks); see CEO 06-10 (Department of Agriculture and Consumer Services
employees participating in cost-share programs administered by the Division of Forestry); see
CEO 08-28 (county recreation employee also Special Olympics employee); see CEO 09-3 (city

19
fire lieutenant); see CEO 10-23 (city tennis professional employee also operating pro shop); see
CEO 14-24 (county employee contacting with county to be independent contractor after
retirement); and see CEO 10-24 (city economic development commission/downtown development
review board). Also, see CEO 05-6 (not applicable to negate conflict of employee of Agency for
Persons with Disabilities occasioned by employee's operation of group home); but see F.S.
393.0654 (and CEO 14-23, which construes F.S. 393.0654). Additionally, see CEO 06-25 (deputy
sheriff employed by company contracting with sheriff's office). CEO 14-04 applied F.S. 112.316
to negate the application of the first part of F.S. 112.313(7)(a) where a FDOT employee removed
himself from the contract-selection process involving his former private employer and where the
employee's remaining relationship with the former employer involved only his holding a very
small percentage of its stock via his pension. Further, F.S. 112.316 has been applied in a situation
in which a county commissioner owned a small number of shares in a large, publicly-traded
corporation (CEO 05-8), in a situation in which a State-level employee owned a small number of
stock options in a large, publicly-traded telecommunications company (CEO 05-18), and in a
situation in which a hospital district board member was employed by a large corporation making
limited sales of equipment to the district (CEO 10-7). In addition, F.S. 112.316 has been applied
to negate a conflict under F.S. 112.313(7)(a) where a member of a housing authority joined a law
firm contracting with the authority, where the contract/business between the authority and the law
firm was entered into before the member became connected to the firm. CEO 07-1. And, F.S.
112.316 was applied to negate, without the use of grandfathering, a conflict regarding a severance
package from a former employer held by an executive director of a shipping port. CEO 13-11.
F.S. 112.316 was relevant to a decision of no prohibited conflict where an airport authority
commissioner donated (with mutual obligations) his right to purchase a property to the authority.
CEO 13-13. See CEO 17-12 as to a member of the Board of Governors of the State University
System. But be careful to analyze a given situation in light of the second part of F.S. 112.313(7)(a),
as a F.S. 112.316 grandfathering alone may not be adequate to exempt a situation from creating a
continuing or frequently recurring conflict or an impediment to public duty. CEO 09-1.
9. Officers of collective bargaining organizations (e.g., police unions) can be
excluded from the prohibitions of the first part of the statute, but not necessarily from the
prohibitions of the second part. CEO 04-13.
10. F.S. 112.316 can be applied to negate a rote application of F.S.
112.313(7)(a), and thus find no prohibited conflict of interest, where there is a "unity of interest."
See, for example, CEO 11-23, which found no prohibited conflict for district school board
members, the district superintendent, and district employees, where they served without
compensation on the board of a charter school created by the district board's application to itself
for the charter school.
11. Compliance with the voting conflicts law, F.S. 112.3143, will not obviate a
conflict under F.S. 112.313(7); the two statutes operate independently. CEO 94-5, CEO 12-9.
12. Removal of a public employee's public capacity interaction with certain
persons or entities interfacing with the employee's public agency has been recognized, in a certain
situation, as a factor in negating a prohibited conflict under the second part of the statute. CEO
13-12.

V. PROHIBITION ON EMPLOYEES HOLDING OFFICE; DUAL PUBLIC

EMPLOYMENT

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 A. No person may both be an employee of a county, municipality, special taxing
district, or other political subdivision, or of a State agency, and hold office as a member of the
governing board, council, commission, or authority which is his or her employer. F.S.
112.313(10). Both positions must be held at the same time for a violation to exist. CEO 12-3.
B. However, a schoolteacher may take a leave of absence without pay to serve on the
school board without violating this prohibition. Wright v. Commission on Ethics, 389 So. 2d 662
(Fla. 1st DCA 1980). CEO 14-10 found a county employee who would serve on the county
commission to be similarly protected by an unpaid leave of absence.
C. Does not prohibit simultaneous employment/office-holding for different political
subdivisions. For example, a public school teacher or other school district employee is not
prohibited by this provision from serving as a member of the city council of a city located within
the school district. CEO 02-4. But see F.S. 112.3125, below.
D. A fire district commissioner's service as a district firefighter, provided he refuses
in advance and in writing his compensation (per-run payments), is not violative of the statute.
CEO 00-23.
E. The prohibition can be negated, in particular circumstances, by the application of
F.S. 112.316. CEO 06-2 (city housing authority commissioner manager of tutoring site on
authority property).
F. F.S. 112.313(10) has been found not to prohibit a county commissioner from being
employed in the same county's sheriff's office; but note that this dual position-holding was found
to be prohibited by F.S. 112.313(7)(a). CEO 12-12.
G. The prohibition of F.S. 112.313(10) is separate from the "dual office-holding"
prohibition of Article II, Section 5(a), Florida Constitution.
H. Chapter 2013-36, L.O.F., created F.S. 112.3125. The new statute greatly restricts
the ability of elected state or local officers, and candidates for such offices, to accept employment
with the State or any of its political subdivisions. There is a limited "grandfathering," but not as
to promotions, advancements, or additional compensation. The law is self-explanatory; therefore,
its detail will not be repeated here. In CEO 13-10, the Commission found that the law did not
apply to a situation where a county commissioner's limited liability company contracted with a
school board/district. CEO 14-10 found that a county employee who took a leave of absence to
serve on the county commission and who was no longer a county commissioner when he was
reactivated as a county employee would not violate the statute. Under a particular set of facts,
CEO 15-7 found that the statute would not prohibit a school board member from also serving as a
county manager. CEO 15-8 found that neither school board membership nor state college
trusteeship constituted "public employment" prohibited by the statute.

VI. RESTRICTION ON PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD MEMBERS; AND RESTRICTION ON BOARD OF GOVERNORS OF STATE
UNIVERSITY SYSTEM AND TRUSTEES OF UNIVERSITIES SERVING AS A
LEGISLATIVE LOBBYIST
A. No officer, director, or administrator of a Florida state, county, or regional
professional or occupational organization or association, while holding such position, shall be
eligible to serve as a member of a State examining or licensing board for the profession or
occupation. F.S. 112.313(11). However, the restriction does not encompass enumerated service
with a national or regional (e.g., southern states) organization or association (CEO 85-74 and CEO

21
83-68); and the restriction applies only to enumerated positions within a covered organization or
association (CEO 90-61). Was found, under specific facts, not to apply to simultaneous service
on the Florida Real Estate Appraisal Board and service for a private organization whose members
came from various professions (CEO 13-18).
B. F.S. 112.313(17) prohibits citizen members of the Board of Governors of the State
University System and citizen members of boards of trustees of local constituent universities from
holding employment or a contractual relationship as a legislative lobbyist requiring annual
registration and reporting pursuant to F.S. 11.045.

VII. MISUSE OF PUBLIC POSITION PROHIBITION

A. Public officers, public employees, local government attorneys, and "privatized"
chief administrative officers of political subdivisions (F.S. 112.3136) may not corruptly use or
attempt to use their official position or any property or resource within their trust, or perform their
official duties, to secure a special privilege, benefit, or exemption for themselves or another. F.S.
112.313(6).
B. "Corruptly" is defined in F.S. 112.312(9) to mean:

done with a wrongful intent and for the purpose of obtaining, or

compensating, or receiving compensation for, any benefit resulting
from some act or omission of a public servant which is inconsistent
with the proper performance of his or her public duties.

C. The statute has been upheld as not being void for vagueness. Tenney v.
Commission on Ethics, 395 So. 2d 1244 (Fla. 2d DCA 1981); Garner v. Commission on Ethics,
415 So. 2d 67 (Fla. 1st DCA 1982).
D. In order to have acted "corruptly," one must have acted "with reasonable notice that
conduct was inconsistent with the proper performance of her public duties and would be a violation
of the law or the code of ethics." Blackburn v. Commission on Ethics, 589 So.2d 431 (Fla. 1st
DCA 1991). A determination that one acted corruptly must be supported by substantial competent
evidence. Kinzer v. Commission on Ethics, 654 So. 2d 1007 (Fla. 3d DCA 1995). The standard
of proof is clear and convincing evidence. Latham v. Florida Commission on Ethics, 694 So. 2d
83 (Fla. 1st DCA 1997).
E. Mismanagement, "waste in government," and negligent acts are not sufficient; there
must be intentional conduct to benefit oneself or another.
F. Sexual harassment (use of position to benefit oneself) can be a violation. See
Bruner v. Commission on Ethics, 384 So.2d 1339 (Fla. 1st DCA 1980), and Garner v. Commission
on Ethics, 415 So.2d 67 (Fla. 1st DCA 1982); also Garner v. Commission on Ethics, 439 So.2d
894 (Fla. 2d DCA 1983).
G. See CEO 02-13 regarding proper/improper use of public agency "business cards";
see CEO 07-24 regarding a sheriff's office employee (candidate for sheriff) wearing uniform and
equipment while campaigning; see CEO 08-20 regarding identification of a senator's public
position in private firm descriptive information; see CEO 09-7, note 9, as to a county
commissioner's promoting job creation; see CEO 13-25 regarding a senator's providing a letter of
support for grant funding or for a hospice's certificate of need application; and see CEO 16-2

22
regarding an advisory board member placing items on public meeting agendas, writing columns
while identifying herself as a public officer, and engaging in similar or related conduct.
H. Robinson v. Commission on Ethics, 242 So. 3d 467 (Fla. 1st DCA 2018), involved
a local government attorney misusing his public position in violation of F.S. 112.313(6).

NOTE: AMENDMENT 12, FROM THE RECENT CONSTITUTION REVISION

COMMISSION (CRC) AND APPROVED BY THE VOTERS, CONCERNING ABUSE OF
PUBLIC POSITION AND OTHER MATTERS.

VIII. PROHIBITION AGAINST DISCLOSURE OR USE OF CERTAIN

INFORMATION
Current and former public officers, public employees, and local government attorneys are
prohibited from disclosing or using information not available to members of the general public
and gained by reason of their official position (except for information relating exclusively to
governmental practices) for their personal gain or benefit or for the personal gain or benefit of any
other person or business entity. F.S. 112.313(8); CEO 11-01. Does not prohibit use of one’s
general expertise or skill, but can be violated where one would work privately regarding a
particular project or matter about which he or she gained knowledge or expertise via his or her
public position. CEO 04-15. Note that the statute now has applicability to "privatized" chief
administrative officers of political subdivisions (F.S. 112.3136).

IX. PROHIBITION AGAINST SOLICITATION AND ACCEPTANCE OF CERTAIN

GIFTS

A. Under F.S. 112.313(2), public officers, public employees, local government

attorneys, "private" charter school board members [F.S. 1002.33(26)(a)], "privatized" chief
administrative officers of political subdivisions [F.S. 112.3136], and candidates for nomination or
election are prohibited from soliciting or accepting anything of value to the recipient based on any
understanding that the vote, official action, or judgment of the official, employee, attorney, or
candidate would be influenced thereby. CEO 09-21. CEO 13-2, Question 2. CEO 14-26 dealt
with a city council member accepting designation by a chamber of commerce as an endorsed
vendor. CEO 15-13 addressed an FDOT employee's acceptance of an opportunity from an industry
association to volunteer his services on a charitable construction project team.
B. Things of value under this provision include, but are not limited to, gifts, loans,
rewards, promises of future employment, favors, and services.
C. Essentially amounts to bribery and requires a quid pro quo.

X. PROHIBITION AGAINST UNAUTHORIZED COMPENSATION/GIFTS

A. Public officers, employees, local government attorneys, and their spouses and
minor children (but not other relatives, e.g., a son-in-law, CEO 11-04) are prohibited from
accepting any compensation, payment, or thing of value when the official knows or, with the
exercise of reasonable care, should know that it is given to influence a vote or other action in which
the official was expected to participate in his/her official capacity. F.S. 112.313(4).

23
 B. The Commission has found this standard violated when a legislator received a
lobbyist-paid hunting trip, when a legislator received a lobbyist-paid trip to Key West, when a
mayor received free cable television service from the city's cable franchisee, and when city
officials received free memberships from a country club leasing its facilities from the city. Also,
this provision would be violated were an employee of the Department of Children and Family
Services to receive $100 for participation in a brief survey regarding a company doing business
with the Department (CEO 01-2); but see CEO 04-11 (violation unlikely under circumstances
where school superintendent received “to-be-forgiven” home loan). In CEO 08-12, a fair market
value, arms-length residential rental to a school board member was not found to violate the statute.
In CEO 09-21, a public officer's not knowing the identity of contributors to a fund to help her ill
son-in-law was a factor in there being no violation of the statute. CEO 10-9 found that the statute
was not violated where the wife of a Public Service Commission member obtained contract work
with a private school, where the husband of a member of the school's advisory board frequently
represented intervenors before the PSC. CEO 15-11 addressed a water management district's
executive director's spouse being employed by a law firm representing clients in district matters.
CEO 15-13 addressed an FDOT employee's acceptance of an opportunity from an industry
association to volunteer his services on a charitable construction project team.
C. The Third District Court of Appeal held the statute unconstitutionally vague in
Barker v. Commission on Ethics, 654 So. 2d 646 (Fla. 3d DCA 1995), but the Supreme Court
reversed in Commission on Ethics v. Barker, 677 So. 2d 254 (Fla. S. Ct. 1996). The First District
Court of Appeal held the statute not to be unconstitutionally vague. Goin v. Commission on Ethics,
658 So. 2d 1131 (Fla. 1st DCA 1995).
D. See CEO 14-26, which opined as to F.S. 112.313(4) in the context of a city council
member accepting a chamber of commerce's designation as an endorsed vendor.
E. County economic development director's participation in events funded by local
economic development corporation, CEO 18-15.

Note: the statute now has applicability to "privatized" chief administrative officers of political
subdivisions. F.S. 112.3136.

XI. GIFT PROHIBITIONS AND DISCLOSURES FOR "REPORTING

INDIVIDUALS" AND "PROCUREMENT EMPLOYEES"
A. "Reporting Individuals" and "Procurement Employees" (RIPEs) also are subject to
the detailed gift law provided in F.S. 112.3148. The persons subject to this law include, but are
not limited to, district school board members. However, note that district school board members
also are subject to F.S. 1001.421, which prohibits district school board members and their relatives,
as defined in F.S. 112.312(21), from directly or indirectly soliciting or accepting any gift, as
defined in F.S. 112.312(12), in excess of $50, from any person, vendor, "potential vendor," or
other entity doing business with the school district; and note that F.S. 1001.421 is not a part of the
Code of Ethics contained in F.S. Part III, Chapter 112. And, note the additional gift provision
applicable to employees and board members of Citizens Property Insurance Corporation. F.S.
627.351(6)(d)4.
1. "Reporting individuals" are defined to include persons who are required by
law to file the full financial disclosure statement specified in Art. II, Sec. 8, Fla. Const. (CE Form
6), and persons required to file the limited financial disclosure statement specified in F.S. 112.3145

24
(CE Form 1). F.S. 112.3148(2)(d); and see F.S. 112.3136 regarding chief administrative officers
of political subdivisions. Reporting Individuals who are suspended from office have been found
to remain subject to the gift law while suspended. CEO 10-19. "Procurement employees" are
defined to include any employee of an officer, department, board, commission, council, or agency
of the executive branch or judicial branch of state government who has participated in the
preceding 12 months through decision, approval, disapproval, recommendation, preparation of any
part of a purchase request, influencing the content of any specification or procurement standard,
rendering of advice, investigation, or auditing or in any other advisory capacity in the procurement
of contractual services or commodities as defined in F.S. 287.012, if the cost of such services or
commodities exceeds or is expected to exceed $10,000 in any fiscal year. F.S. 112.3148(2)(e).
2. Local government attorneys who are RIPEs (by virtue of filing limited
disclosure) generally are only the city attorney or the county attorney. Assistant city or county
attorneys, attorneys for local government boards, and attorneys for special districts are not RIPEs.
See CEO's 83-56, 84-5, 85-49. District School Board attorneys are not RIPEs, unless they come
within a generic definition [e.g., "purchasing agent" as defined in F.S. 112.3145(1)(a)3, Florida
Statutes (a F.S. 287.017 CATEGORY ONE purchasing agent).]
3. Based on information submitted by State and local agencies, the
Commission prepares lists of persons required to file full and limited disclosure. F.S. 112.3145(7).
These lists are helpful as a starting point for information about who is a reporting individual.
B. Prohibition against RIPEs Soliciting Gifts: A RIPE is prohibited from soliciting
any gift from a lobbyist who lobbies the RIPE's agency, from the partner, firm, employer, or
principal of such a lobbyist, from a vendor doing business with the RIPE's agency, or from a
political committee as defined in the election laws (F.S. 106.011), if it is for the personal benefit
of the RIPE, another RIPE, or a parent, spouse, child, or sibling of a RIPE. F.S. 112.3148(3).
1. The prohibition against solicitation is comprehensive, there is no valuation
threshold, and it applies even to food and beverages.
2. The gift must be for the personal benefit of the RIPE, a family member, or
one or more other RIPEs. Therefore, a RIPE cannot solicit lobbyists for contributions toward a
banquet for other RIPEs. But, solicitation of a gift intended for one's agency or for a charity, for
example, is not prohibited. CEO 91-52. Under the facts of CEO 09-21 (fund established to benefit
ill son-in-law of county commissioner), solicitation was not found.
3. Note that there may be provisions outside the Code of Ethics which place
further restrictions on solicitations of items, but which cannot "relax" the provisions contained
within the Code. See, for example, F.S. 334.195, concerning solicitation of funds by FDOT
personnel from "any person who has, maintains, or seeks business relations with the department."
C. General Rule on Accepting Gifts: Subject to specific, limited exceptions, a RIPE
(and any other person on behalf of the RIPE) is prohibited from knowingly accepting a gift which
he or she knows or reasonably believes has a value exceeding $100: (1) directly or indirectly from
a lobbyist who lobbies the RIPE's agency or from a political committee or vendor; or (2) directly
or indirectly made on behalf of the partner, firm, employer, or principal of such a lobbyist. F.S.
112.3148(4). CEO 18-08 found that pro bono legal services provided to a city in a lawsuit in
which a city commissioner was named in his official capacity as a commissioner was not a gift to
the commissioner. CEO 19-01 found that a nonprofit's acceptance of donations from school
district vendors did not constitute gifts to a school board member even though the member had a
certain affiliation with the nonprofit.

25
 1. On the issue of knowledge, note that Commission Rule 34-13.310(4),
F.A.C., provides that "reasonable inquiry" should be made of the source of the proposed gift to
determine whether it is prohibited. [All further citations to Commission rules are to F.A.C. Chapter
34-13.]
2. Where the gift is given to someone other than a RIPE by one of the
prohibited group of donors and is given with the intent to benefit the RIPE, the gift is considered
an indirect gift to the RIPE. Rule 310(6). This rule also provides examples of what would be
considered prohibited and permitted indirect gifts, as well as the factors the Commission considers
in determining whether an indirect gift has been made. See CEO 99-6 (Republican Party fundraiser
at Disney World attended by public officers) and CEO 05-5 (city officials accepting admissions to
speedway suite). See also CEO 06-27 (city paying travel expenses for companions of city officials)
and CEO 07-3 (conference sponsor offering discounted registration rate to employees of Office of
Financial Regulation). In CEO 08-2, it was determined that appearances by the Attorney General
in public service announcements promoting a Florida conference for women (although constituting
a gift) would not constitute an indirect gift from a prohibited donor. CEO 09-21 (fund established
to benefit ill son-in-law of county commissioner) did not find an impermissible indirect gift.
3. Exceptions. Aside from the exemption for gifts from relatives, there are
only three express exceptions to the general rule against accepting gifts worth more than $100
from one of the prohibited group of donors:
a. When the gift is accepted on behalf of a governmental entity or a
charitable organization. CEO 13-2, Question 2. In this instance, the recipient may maintain
custody of the gift for only the time reasonably necessary to arrange for the transfer of custody and
ownership of the gift. F.S. 112.3148(4). These gifts need not be reported. Rule 400(2)(d). Note
that Rule 320(1)(b) defines "charitable organization" to mean an organization described in s.
501(c)(3) of the Internal Revenue Code and exempt from tax under s. 501(a). Note that travel
expenses of a public official provided directly to the official by persons or entities other than the
official's own public agency have been found to be gifts to the official and not gifts to his
governmental entity; but that reimbursement to an agency for the official's travel or donations to
an agency travel fund can be permissible as gifts to the governmental entity. CEO 13-3.
b. When the gift is from one of certain kinds of governmental entities
(an entity of the legislative or judicial branch, a department or commission of the executive branch,
a county, a municipality, an airport authority, a water management district created pursuant to F.S.
373.069, the South Florida Regional Transportation Authority, a county, a municipality, or a
school board), provided that a public purpose can be shown for the gift. F.S. 112.3148(6)(a) &
(b). These gifts must be reported; however, in CEO 01-14, the Commission on Ethics found that
office space made available by a municipality to a Legislator for use as his district office was not
a "gift." Note that Rule 320(2) defines "public purpose," specifies that there must be a public
purpose for the entity's having given the gift and for the RIPE's accepting the gift, and concludes
that there is no public purpose for a gift involving attendance at a spectator event unless the donee
has direct supervisory or regulatory authority over the event, persons participating in the event, or
the entity which gave the tickets. See also CEO 91-53 (county provides telephone service to
legislative delegation).
c. When the gift is from a direct-support organization (DSO)
specifically authorized by law to support a governmental entity, so long as the RIPE is an officer
or employee of that governmental entity. F.S. 112.3148(6)(a) & (b). These gifts must be reported.
See CEO 92-14 (DSO for state university).

26
 D. Gift Disclosures for RIPEs.
1. Quarterly Gift Disclosure (CE Form 9): Each RIPE must file this form to
list each gift worth over $100 accepted by the RIPE, except for gifts from relatives, gifts required
to be disclosed on other forms, and gifts the RIPE is prohibited from accepting. The deadline is
the last day of the calendar quarter following the calendar quarter in which the gift was received.
The form need not be filed if no reportable gift was received during the calendar quarter. However,
note that the Commission rule requires a RIPE to disclose a gift reportable on this form received
during the time the RIPE held his or her public position, regardless of whether the position was
vacated before the form is due. The form is filed with the Commission. F.S. 112.3148(8); Rule
400.
2. Annual Gift Disclosure (CE Form 10). Each RIPE must file this form to
list each gift worth over $100 received by the RIPE: from a governmental entity, for which a
public purpose can be shown; or from a direct-support organization. For example, see CEO 10-
11 (direct-support organization of hospital district providing gifts to district board members). The
deadline is July 1 of the year following the year in which the gift was received. The form is filed
along with the annual financial disclosure form. A procurement employee files with the
Commission on Ethics. The form need not be filed if no reportable gift was received. F.S.
112.3148(6)(d); Rule 410. The report filed by a reporting individual or procurement employee
who left office or employment during the calendar year covered by the report shall be filed by July
1 of the year after leaving office or employment at the same location as his or her final financial
disclosure statement or, in the case of a former procurement employee, with the Commission on
Ethics.
E. Gift Prohibitions for Donors
1. A lobbyist who lobbies a RIPE's agency; the partner, firm, employer, or
principal of a lobbyist; another on behalf of the lobbyist or partner, firm, principal, or employer of
the lobbyist, a political committee, or a vendor are prohibited from giving, either directly or
indirectly, a gift that has a value in excess of $100 to the RIPE or any other person on the RIPE's
behalf. F.S. 112.3148(5)(a).
2. Exceptions to this prohibition mirror those for RIPEs: a gift worth over
$100 may be given if it is intended to be transferred to a governmental entity or charitable
organization; a gift worth over $100 may be given by certain governmental entities if a public
purpose can be shown for the gift; a gift worth over $100 may be given by a direct-support
organization to an officer or employee of the agency supported by the DSO.
F. Gift Disclosures Applicable to Donors.
1. Quarterly Gift Disclosure (CE Form 30): A lobbyist who lobbies a RIPE's
agency, or the partner, firm, employer, or principal of such a lobbyist, who makes or directs another
to make a gift having a value over $25 but not over $100 to a RIPE of that agency, must file this
form to report the gift. Each political committee which makes or directs another to make a gift
having a value over $25 but not over $100 to a reporting individual or procurement employee must
file this form to report the gift. In addition, the donor must notify the intended recipient at the time
the gift is made that the donor, or another on the donor's behalf, will report the gift. The report is
filed with the Commission, except with respect to gifts to RIPES of the legislative branch (of State
government), in which case the report shall be filed with the Office of Legislative Services. F.S.
112.3148(5)(b); Rule 420.
a. The disclosure requirement does not apply to the following gifts:
those which the donor knows will be accepted on behalf of a governmental entity or charitable

27
organization; those from a direct support organization (DSO) to a RIPE of the agency supported
by the DSO; or those from an entity of the legislative or judicial branch, a department or
commission of the executive branch, a water management district created pursuant to F.S. 373.069,
the South Florida Regional Transportation Authority, the Technological Research and
Development Authority, a county, a municipality, an airport authority, or a school board.
b. The deadline is the last day of the calendar quarter following the
calendar quarter in which the gift was made. The same gift need not be reported by more than one
person or entity, and the form need not be filed if no reportable gift was made during the calendar
quarter.
c. Note that the Commission rule requires the donor to disclose a gift
reportable on this form, regardless of whether the donor is within the prohibited group at the time
the form is due.
2. Annual Gift Statements by Governmental Entities and DSOs. No later than
March 1 of each year, each governmental entity or DSO which has given a gift worth over $100
to a RIPE during the previous calendar year (where the gift is exempted) must give the RIPE a
statement describing the gift, the date of the gift, and the value of the total gifts given by the entity
or DSO to that RIPE during the calendar year. CEO 10-11. A governmental entity may provide
a single statement covering gifts provided by the entity and any associated DSO. No form has
been promulgated by the Commission for this statement. F.S. 112.3148(6)(c); Rule 430.
G. Gifts from Relatives:
1. Gifts solicited or accepted by a RIPE from a relative are not prohibited or
reportable by either the RIPE or the relative, regardless of whether the relative is a lobbyist, the
partner, employer, or principal of a lobbyist, or a vendor. F.S. 112.3148(1); Rules 300(3), 320(4),
400(2), 420(7).
2. The definition of "relative" is expansive, including not only family members
such as in-laws and step-relatives, but also persons engaged to RIPEs, persons who hold
themselves out as or are generally known as intending to marry or form a household with the RIPE,
and any person having the same legal residence as the RIPE. F.S. 112.312(21). CEO 16-1 found
that a boyfriend was not a relative.
H. The Definition of "Gift." Although comprehensive in many respects, including
what may be provided to the donee directly, indirectly, or through another, the definition of "gift"
[F.S. 112.312(12)] contains several important exceptions. Since the definition is uniformly
applicable to the prohibitions and disclosures, this has the effect of exempting transactions within
an exception to the definition of gift (e.g., gifts from relatives, items received in exchange for equal
or greater consideration) from being prohibited or subject to disclosure. (As the definition contains
a long list of examples of what is a gift and what is not, it is not quoted here; only major concepts
and exceptions are reviewed.)
1. Included in the definition are several items that might not normally be
considered a gift. These include the use of real or personal (tangible and intangible) property; a
preferential rate or terms on a debt, loan, goods, or services, which rate is not a government rate
or available to similarly situated members of the general public by virtue of certain private
attributes; transportation (other than transportation provided by an agency in relation to officially
approved governmental business), lodging, and parking; personal and professional services; and
any other service or thing having an attributable value. Free publicity or exposure for members of
the Legislature can constitute a "gift" (CEO 05-11), as it can for a city commissioner (CEO 08-
29). Informational material can be a gift (CEO 16-3).

28
 2. If equal or greater consideration is given (within 90 days of receipt of the
gift), it is not a gift; "consideration" does not include a promise to pay or otherwise provide
something of value unless the promise is in writing and enforceable through the courts. F.S.
112.312(12)(a) and 112.312(12)(d). Based upon this concept, the Commission's rule specifies that
salary, benefits, services, fees, or other expenses (including travel expenses when a public purpose
for the travel exists) received by a RIPE from his or her public agency do not constitute gifts.
However, services rendered by the RIPE on behalf of the RIPE's agency by use of official position
do not count as consideration for a gift from a person or entity other than the agency. CEO 01-19,
CEO 05-5 (regarding speedway admissions). The rule provides that substantiating equal or greater
consideration is the responsibility of the donee. CEO 01-13. This can be done by providing
information demonstrating the fair market value of items of merchandise, supplies, raw materials,
or finished goods provided by the donee to the donor. In the case of personal labor or effort for
the benefit of the donor, the length of time, value of the service provided, and whether others
providing similar services for the donor received a comparable gift will be reviewed by the
Commission. Rule 210. CEO 01-13. In CEO 13-2, the Commission found that a charity auction
purchase by a public officer of a poker party provided to the charity by a principal of a lobbyist of
the officer's public agency was not a gift because the auction was open to all and the auction price
was adequate consideration for the poker party. CEO 16-1 found that if a couple (public officer
and her boyfriend) shared the cost equally of travel, meals, lodging, or entertainment, the officer
had provided adequate consideration and thus had not received a gift. CEO 17-13 found that meet
and greet services, media services, and other platforms for which fair market values were paid are
not "gifts."
3. There is a significant exclusion for salary, benefits, services, fees,
commissions, expenses, and even gifts associated primarily with the donee's employment or
business, or with the donee's service as an officer or director of a corporation or organization. F.S.
112.312(12)(b)1; CEO 14-26; CEO 09-1; CEO 10-11; CEO 15-9. Rule 214 states that this means
those things associated with the donee's principal employer or business occupation and unrelated
to the donee's public position. EXAMPLE: Fees or even gifts received by a RIPE from a client
of his or her private law practice, with no other relationship between the RIPE and the client, would
not be a prohibited or reportable gift. However, in CEO 92-33 tickets from one's agency to theater
performances were not considered "benefits" under the rule, unlike benefits typically associated
with employment.
4. Except as provided in F.S. 112.31485, contributions or expenditures
reported under the campaign financing law, campaign-related personal services provided by
volunteers, and any other contribution or expenditure by a political party are exempted.
5. An honorarium or expense related to an honorarium event paid to a RIPE
or spouse is exempted. These are treated exclusively under the honorarium law.
6. Effective January 1, 1997, food and beverages consumed at a single sitting
or event came within the definition of gift. Chapter 96-328, Laws of Florida. Therefore, a cup of
coffee or a meal may be prohibited or reportable, depending on value.
I. The Definition of "Lobbyist." A "lobbyist" is defined to mean any natural person
who is compensated for seeking to influence the governmental decisionmaking of a RIPE or the
agency of a RIPE or for seeking to encourage the passage, defeat, or modification of any
recommendation or proposal by a RIPE or the RIPE's agency; it also includes any person who did
so during the preceding 12 months. F.S. 112.3148(2)(b); Rule 240.

29
 1. A lobbyist is being compensated when receiving a salary, fee, or other
compensation for the action taken. Rule 240. Thus, any employee of an organization, including
the chief executive officer or a salesperson, who is contacting the agency as part of his or her job
may be lobbying. On the other hand, an unpaid volunteer member of a nonprofit organization who
seeks to influence governmental decision making will not be a lobbyist (but see 4, below, for a
possible exception).
2. All types of governmental decisionmaking or recommendations are
included, whether they fall in the area of procurement, policymaking, investigation, adjudication,
or any other area. Rule 240(3).
3. A purely informational request made to an agency and not intended in any
way to directly or indirectly affect a decision, proposal, or recommendation of a RIPE or an agency
does not constitute lobbying. One must have the intent to affect a decision, proposal, or
recommendation and take some action that directly or indirectly furthers or communicates one's
intention. Rule 240(4).
4. For agencies that have established by rule, ordinance, or law a registration
or other designation process for persons seeking to influence decision making or to encourage the
passage, defeat, or modification of any proposal or recommendation by such agency or an
employee or official of the agency, a "lobbyist" includes only a person who is required to be
registered or otherwise designated as a lobbyist in accordance with that process or who was so
required during the preceding 12 months. F.S. 112.3148(2)(b). However, the local registration
system must be at least as broad in defining who is a "lobbyist" as the Legislature's registration
system in order to define who is a lobbyist for purposes of the gift and honoraria laws.
J. Valuation of Gifts.
1. The general method for valuation uses the actual cost to the donor (less taxes
and gratuities) rather than fair market value of the gift, but several exceptions are provided. The
Commission's Rule specifies that "actual cost" means the price paid by the donor which enabled
the donor to provide the gift to the donee; if the donor is in the business of selling the item or
service (other than personal services), the donor's actual cost includes the total costs associated
with providing the items or services divided by the number of units of goods or services produced.
F.S. 112.3148(7); Rule 500(1). CEO 17-16 found, under particular circumstances, that the naming
of a public facility for a sitting public official involved not cost to the donor, and thus was not a
prohibited gift.
2. Personal services provided by the donor, meaning individual labor or effort
performed by one person for the benefit of another, are valued at the reasonable and customary
charge regularly charged for such service in the community in which the service is provided. F.S.
112.3148(7)(a); Rule 500(2).
3. Compensation provided by the donee to the donor is deducted from the
value of the gift in determining the value of the gift. Under the Commission's rule, compensation
includes only payment by the donee to the donor and excludes personal services rendered by the
donee for the benefit of the donor. However, recall that services by the donee may constitute equal
or greater consideration, with the result that no gift has been made. The compensation principle
gives rise to the so called "$100 deductible," under which the official pays all but $100 of the value
of the gift in order to be allowed to accept the gift; but see H.2 above regarding the requirement of
payment within 90 days.

30
 4. If the actual value attributable to a participant at an event cannot be
determined, the total costs are prorated among all invited persons, including nonRIPEs. F.S.
112.3148(7)(c).
5. Transportation is valued on a round-trip basis and is a single gift, unless
only one-way transportation is provided. Transportation in a private conveyance is given the same
value as transportation provided in a comparable commercial conveyance. The rule specifies that
this means a similar mode and class of transportation which is available commercially in the
community; transportation in a private plane is valued as an unrestricted coach fare. If the donor
transports more than one person in a single conveyance at the same time, the value to each person
is the same as if it had been in a comparable commercial conveyance. F.S. 112.3148(7)(d); Rule
500(4).
6. Lodging on consecutive days is a single gift. Lodging in a private residence
is valued at $44 per night (the per diem rate less the meal rate provided in F.S. 112.061). F.S.
112.3148(7)(e).
7. Where the gift received by a donee is a trip and includes payment or
provision of the donee's transportation, lodging, recreational, or entertainment expenses by the
donor, the value of the trip is equal to the total value of the various aspects of the trip. Rule 500(3).
8. Food and beverages consumed at a single sitting or event are considered a
single gift, valued according to what was provided at that sitting or meal; other food or beverages
provided on the same calendar day are considered a single gift, valued at the total provided on that
day. F.S. 112.3148(7)(f). If the gift is food, beverage, entertainment, etc. provided at a function
for more than ten people, the value of the gift is the total value of the items provided divided by
the number of persons invited, unless the items are purchased by the donor on a per person basis.
9. Tickets and admissions to events, functions, and activities are a frequent
source of inquiries. Generally, the rule is that the value is the face value of the ticket or admission
fee, but if the gift is an admission ticket to a charitable event AND is given by the charitable
organization, that portion of the cost which represents a charitable contribution is not included in
valuing the gift. F.S. 112.3148(7)(k) and CEO 04-12 (opining as to a charitable golf tournament).
Rule 500(5) provides a number of specific examples and principles for valuing this type of gift,
especially relating to football tickets, booster fees, and seating in a skybox. Skybox tickets given
by a county for professional basketball playoff games would be valued at the cost of admission to
persons with similar tickets. CEO 95-36 and CEO 96-02. Multiple tickets received at one time
by a RIPE to be used by the RIPE or given to others are valued by multiplying the number of
tickets given times the face value of each (CEO 92-33). CEO 16-10 valued tickets/admission to a
particular charity polo match.
10. Where the donor is required to pay additional expenses as a condition
precedent to being eligible to purchase or provide the gift, and where the expenses are for the
primary benefit of the donor or are of a charitable nature, those expenses are not included in
determining the value of the gift. Examples: A lobbyist's golf club membership fees, for the
personal benefit of the lobbyist, are not included when valuing the gift of a round of golf; and the
portion of a skybox leasing fee allocated to the FSU Foundation, Inc. (expenses of a charitable
nature) is not included in the value of a skybox seat. Rule 500(7) and CEO 94-43.
11. Membership dues paid to one organization during any 12-month period are
considered a single gift. F.S. 112.3148(7)(g).
12 Unless otherwise noted, a gift is valued on a per occurrence basis, meaning
each separate occasion on which a donor gives a gift to a donee. F.S. 112.3148(7)(i); Rule 500(6).

31
 K. Multiple donors.
1. In determining whether a gift is prohibited, the value of the gift provided to
a RIPE by any one donor equals the portion of the gift's value attributable to that donor based upon
the donor's contribution to the gift. The value of the portion provided by any lobbyist or other
prohibited donor cannot exceed $100; if it does, the RIPE cannot accept the gift. Rules 310(5),
510(2). CEO 08-19.
2. Regardless of whether the gift is provided by multiple donors, the RIPE
must disclose it if the value of the gift as a whole exceeds $100. Rule 510(1). CEO 08-19.
3. In determining whether a donor must disclose a gift ($25-$100) or provide
a statement to the RIPE about the gift (over $100), the value of the gift provided by any one donor
equals the portion of the gift's value attributable to that donor based upon the donor's contribution
to the gift. If that value exceeds the threshold, the donor must disclose the gift or provide the
statement. Rules 420(9), 430(4), 510(3). CEO 08-19.
L. Newly-created F.S. 112.31485 (via Chapter 2013-36, L.O.F.) prohibits a RIPE or a
member of a RIPE's immediate family from soliciting or knowingly accepting, directly or
indirectly, any "gift" from a political committee; and prohibits a political committee from giving
such a gift. For purposes of this prohibition, "gift" is defined to mean "any purchase, payment,
distribution, loan, advance, transfer of funds, or disbursement of money or anything of value that
is not primarily related to contributions, expenditures, or other political activities authorized
pursuant to chapter 106." This statute is in addition to the provisions of F.S. 112.3148, discussed
above.
M. F.S. 627.351(6)(d)4 contains an additional gift prohibition for employees and board
members of Citizens Property Insurance Corporation.

XII. PROHIBITED “EXPENDITURES” AT THE STATE LEVEL

[Note: In addition to the gift and honoraria laws codified at F.S. 112.3148 and 112.3149,
the legislature enacted, in a December 2005 Special Session, Chapter 2005-359, L.O.F. (amending
F.S. 112.3215), which addresses legislative and executive-branch lobbying at the state level. The
law contains substantial obligations, prohibitions, and requirements. However, while the law may
apply to certain lobbying-related gifts, expenditures, or activities made by or on behalf of local
governments to state level officials, it does not apply to such items or activities directed at local
government officials. Nevertheless, the law did not repeal any prohibition of sections 112.3148
and 112.3149, which continue to apply at both the state and local levels. The Commission on
Ethics has developed rules and renders advisory opinions regarding the portion of the law which
it administers (Executive-Branch portion, F.S. 112.3215, Florida Statutes); and the legislature has
established lobbying guidelines for the House and Senate.] See CEO 06-4 (Executive Branch
lobbying, agency officials and employees buying tickets to association's annual legislative
reception), CEO 06-6 (engagement party or wedding gifts paid for by lobbyists), CEO 06-7
(donations to the Department of Agriculture and Consumer Services and its direct-support
organization given by principals of lobbyists), CEO 06-11 (Governor and staff traveling on trade
mission paid for by Enterprise Florida, Inc.), CEO 06-14 (corporate donations used to underwrite
costs of annual Prudential Financial-Davis Productivity Awards), CEO 06-15 (corporate gifts and
donations to the United Way for the annual Florida State Employees' Charitable Campaign), CEO
06-17 (promotional items given away by insurance provider to state employees attending benefit
fairs), CEO 06-18 (discounted cellular telephone service offered to Department of Revenue

32
employees by company whose lobbyists are registered to lobby the executive branch), CEO 07-3
(conference sponsor offering discounted registration rate to employees of Office of Financial
Regulation), CEO 07-8 (lobbying firms and prohibited indirect expenditures), CEO 08-2 (Attorney
General appearing in public service announcements), and CEO 09-1 (Citizens Insurance board
member). Also, see F.S. 112.3215(1)(d) regarding what is an "expenditure." Many government
entities have been found not to be an "agency" for purposes of F.S. 112.3215 (CEO 08-19).
Expenditures from one who lobbies any executive branch agency have been found to be prohibited
as to certain officials or employees of all executive branch agencies (CEO 08-19). Reimbursement
to a public agency, as opposed to an agency employee, has been found not to be a prohibited
expenditure (CEO 08-26). See CEO 12-16, regarding recorded greetings by the Governor being
played on airport shuttle buses. CEO 16-3 found that attendance, at no cost, at purely informational
briefings and gatherings (hosted by companies which were principals of executive branch
lobbyists) at which the only thing of value received was the oral and written information
distributed, was not prohibited. CEO 17-16 found, under particular circumstances, that the naming
of a public facility for a sitting public official was not a prohibited expenditure.

XIII. HONORARIA AND HONORARIUM EVENT-RELATED EXPENSES

A. An "honorarium" is defined to mean a payment of money or anything of value,
directly or indirectly, to a RIPE or to any other person on the RIPE's behalf, as consideration for a
speech, address, oration, or other oral presentation; or for a writing (other than a book) which is or
is intended to be published. F.S. 112.3149(1)(a).
1. The Commission's rule specifies that the speech or other oral presentation
means a formal address, lecture, panel discussion, or other presentation which a RIPE has been
invited to make to a gathering of persons, and further provides examples of documentation
evidencing a genuine presentation by the RIPE, rather than a subterfuge to allow an otherwise
prohibited gift. Rule 220.
2. The term "honorarium" specifically excludes: payment for services related
to outside employment; ordinary payments or salary received for services related to the RIPE's
public duties; a campaign contribution reported as required by law; and the payment or provision
of actual and reasonable transportation, lodging, event or meeting registration fees, and food and
beverage expenses related to the honorarium event for the RIPE and spouse. F.S. 112.3149(1)(a).
Rule 220(3) concludes that to the extent that the expenses paid or provided for exceed those that
are actual and reasonable, that amount constitutes an honorarium. The rule also specifies a number
of circumstances the Commission will consider in determining the reasonableness of expenses
paid or provided, again in an effort to see that this exception does not allow an otherwise prohibited
gift or honorarium.
B. A RIPE is prohibited from soliciting an honorarium from anyone, regardless of
amount, when the subject of the speech or writing relates to the RIPE's public office or duties. F.S.
112.3149(2).
C. Prohibition Against Accepting or Providing Honoraria. A RIPE is prohibited from
knowingly accepting an honorarium from: a lobbyist; the employer, principal, partner, or firm of
a lobbyist; a political committee; or a vendor. Similarly, these persons and entities are prohibited
from providing an honorarium to a RIPE. There is no $100 threshold for honoraria, as there is for
gifts. As with gifts, the Commission's rule states that "reasonable inquiry" should be made by the

33
RIPE to determine whether the honorarium is prohibited. F.S. 112.3149(3) & (4); Rules 620 &
630.
D. A RIPE must disclose the receipt of payment for, or the provision of, expenses
related to an honorarium event from a person or entity that is prohibited from paying an honorarium
to the RIPE. There is no $100 threshold for this disclosure requirement. Honoraria or honorarium
event-related expenses paid or provided by any other person or entity are not required to be
disclosed. CEO 91-57. The statement (CE Form 10) is due by July 1 for expenses paid for or
provided during the prior calendar year, but the form need not be filed if there is nothing to report.
The form is filed along with the annual financial disclosure. F.S. 112.3149(6); Rule 710. A
procurement employee files with the Commission on Ethics. The statement filed by a reporting
individual or procurement employee who left office or employment during the calendar year
covered by the statement shall be filed by July 1 of the year after leaving office or employment at
the same location as his or her final financial disclosure statement or, in the case of a former
procurement employee, with the Commission on Ethics.
E. No later than 60 days after the honorarium event, the person or entity paying or
providing a RIPE's honorarium event-related expenses must provide to the RIPE a statement listing
the name and address of the person or entity, a description of the expenses provided each day, and
the total value of the expenses provided for the event. This applies only to persons and entities
that are prohibited from paying an honorarium to the RIPE. No form has been promulgated by the
Commission for this statement. F.S. 112.3149(5).
F. Note that the expenditure ban of F.S. 112.3215(6)(a) may prohibit honoraria event-
related expenses not prohibited under F.S. 112.3149; and that F.S. 112.31485 (gifts involving
political committees) could prohibit the payment of expenses not prohibited by F.S. 112.3149.

XIV. LOCAL GOVERNMENT ATTORNEYS

A. All "local government attorneys" are subject to the provisions of the Code of Ethics
contained in F.S. 112.313(2), (4), (5), (6), & (8). Government employee (not independent
contractor) local government attorneys, and public officer local government attorneys (e.g., a city
attorney where the city's charter states that the city attorney is among the officers of city
government, like the mayor or the police chief), also are subject to F.S. 112.313(3) & (7). F.S.
112.313(16); CEO 02-19, note 3.
B. A "local government attorney" is defined to mean "any individual who routinely
serves as the attorney for a unit of local government." "Unit of local government" includes, but is
not limited to, municipalities, counties, and special districts. Expressly excluded from the
definition are attorneys who render services limited to a specific issue or subject, to specific
litigation, or to a specific administrative proceeding.
C. Unless the local government attorney is a full-time employee or governing board
member of the unit of local government, it is not conflicting under F.S. 112.313(3) or 112.313(7)
for the attorney's law firm to provide services to the governmental unit; however, the local
government attorney may not refer legal work to his or her firm unless authorized by contract.
Also, the firm may not represent private clients before the governmental unit; F.S. 112.313(16);
Robinson v. Commission on Ethics, 242 So. 3d 467 (Fla. 1st DCA 2018).
D. The Commission on Ethics did not find F.S. 112.313(16) to apply to a situation
involving a public employee general counsel/executive director whose employment was not
limited to the provision of legal services. CEO 08-15.

34
 E. See CEO 17-18, finding an attorney serving as the attorney for a value adjustment
board to be a "local government attorney," and finding the board to be a "unit of local government."

XV. CHIEF ADMINISTRATIVE OFFICERS OF POLITICAL SUBDIVISIONS

A. The officers, directors, and chief executive officer of a corporation, partnership, or
other business entity that is serving as the chief administrative or executive officer or employee of
a political subdivision, and any business entity employee who is acting as the chief administrative
or executive officer or employee of the political subdivision, for the purposes of the following
sections, are public officers and employees who are subject to F.S. 112.313 [various standards of
conduct, with qualifications], 112.3145 [financial disclosure and other disclosures], 112.3148 [gift
laws], and 112.3149 [honoraria laws]. F.S. 112.3136. CEO 09-17, CEO 10-01. CEO 14-13 found,
under the facts presented regarding a particular city, that neither the city's financial services firm
nor the firm's personnel were subject to F.S. 112.3136.
B. For F.S. 112.313 purposes, their "agency" is the political subdivision that they
serve.
C. The contract under which the business entity serves as chief executive or
administrative officer is not deemed to violate F.S. 112.313(3) or (7).

XVI. CHARTER SCHOOL BOARD MEMBERS/PERSONNEL [F.S. 1002.33(24) & (26)]

A. Charter school governing board members, including members of governing boards
of charter schools operated by a private entity, are subject to F.S. 112.313(2), (3), (7), and (12),
and to F.S. 112.3143(3). CEO 11-23.
B. Charter school personnel in schools operated by a municipality or other public
entity have been made subject to F.S. 112.3135 (the anti-nepotism law). And to F.S. 112.3145
(financial disclosure), via Chapter 2011-232, L.O.F.
C. Certain charter school personnel in charter schools operated by a private entity are
subject to restrictions like the restrictions of F.S. 112.3135, but apparently without the
administration of the restrictions being placed in the Commission on Ethics. AGO 10-14.
D. An employee of a charter school, or his or her spouse, or an employee of a charter
management organization, or his or her spouse, may not be a member of the governing board of
the charter school. F.S. 1002.33(26)(c).

XVII. POST OFFICE-HOLDING AND POST EMPLOYMENT (REVOLVING DOOR)

RESTRICTIONS
A. F.S. 112.313(9) contains a two-year prohibition on former legislators, statewide
elected officers, selected exempt service employees, senior management service employees, and
certain others representing persons or entities before their former agencies. CEO 10-14 found that
a former Assistant State Attorney was not subject to the prohibition because his public position
had not been that of an "employee" under the applicable definition; and CEO 16-11 found that a
staff director of the House of Representatives Bill Drafting Service was not an "employee" subject
to the prohibition. Applies only to certain former State-level employees or officers; does not apply
to former local (e.g., city housing authority) employees or officers (CEO 07-19, note 3). CEO 14-

35
20 found that a member of the New Motor Vehicle Arbitration Board is an appointed state officer
subject to the prohibition.
1. Usually does not apply to former career service employees. CEO 00-09.
Under certain circumstances, was found not to apply to former career service employees subjected
to an en masse transfer to selected exempt service (CEO 02-1); but see Section 2, Chapter 2006-
275, L.O.F., bringing those transferred en masse under the prohibition. CEO 12-4. In CEO 14-
31, the Commission found that the position of Administrative Law Judge (ALJ) of the Division of
Administrative Hearings (DOAH) is not a position within the prohibition. CEO 18-01 found F.S.
112.313(9)(a)4 not to be applicable to a former employee of the Florida Housing Finance
Corporation.
2. Was found, in a particular situation, not to apply to a former Other Personal
Services (OPS) employee (CEO 05-1); but see Section 2, Chapter 2006-275, L.O.F., bringing OPS
employees under the prohibition.
3. If applicable, effects are broad due to definition of "represent" codified in
F.S. 112.312(22). CEO 09-5; CEO 11-24, note 10. But see CEO 11-03, finding, under a similar
prohibition, that certain expert witness services involving a public agency did not amount to
"representation" before the agency; and see CEO 11-7, finding that a former Secretary of the
Department of Community Affairs could serve as an expert witness.
4. To be applicable, the representation must be regarding a matter before one's
former agency; however, note that a matter can be "before" one's former agency regardless of
whether or not the former agency is the locus of the authority to take final action regarding the
matter. See CEO 06-1, in which the Commission found that a FDOT former SES employee would
be prohibited by F.S. 112.313(9)(a)4 from personally representing another person or entity for
compensation against FDOT in eminent domain proceedings, in eminent domain presuit
negotiations, in an inverse condemnation lawsuit, and in negotiations prior to an inverse
condemnation lawsuit. As to the extent of one's former "agency," see CEO 02-12, CEO 03-10,
CEO 04-16, CEO 06-1, CEO 07-4 (former employee of Department of Financial Services and
Office of Insurance Regulation), CEO 09-6 (former employee of Commission for the
Transportation Disadvantaged), CEO 09-11 (former DCF employee), CEO 10-13 (former senior
attorney of Agency for Workforce Innovation), CEO 11-19 (former DCA/AWI employee), and
CEO 16-14 (former FDEP employee). The whole of the Department of Revenue was found to be
the agency of a former senior attorney of the Department, in CEO 17-02. For purposes of the
prohibition, CEO 08-18 found that the agency of a former employee of the Florida Turnpike
Enterprise (FTE) was the FTE, not the whole of the FDOT. Note that CEO 11-10 clarified that
the "agency" of a particular former FDOT District employee was the District, and not the whole
of FDOT; but that CEO 11-21 and CEO 12-17 found that other FDOT employees had two Districts
as their "agency," due to their particular work histories. And see CEO 11-24, as to "agency,"
finding that a former DCF employee was restricted as to both DCF's Central Region and its SAMH
Tallahassee Program Office, due to her having a presence at both during her DCF employment.
CEO 12-22 found the "agency" of a former FDOT central office employee to be the central office
and all FDOT Districts, due to his work history at FDOT. CEO 18-02, former Department of
Health senior attorney.
5. Is ameliorated by certain "grandfathering." CEO 94-20; CEO 00-01; CEO
08-21 (as to former PSC employee); CEO 14-30 (former FDOT employee grandfathered); but
CEO 14-01 found that a former FDOT employee was not grandfathered out of the prohibition

36
where he had changed from one district to another within FDOT after the 1989 grandfather date,
even though he had begun work (in the other FDOT district) prior to the grandfather date.
6. Applies only to representations before one's former "agency," and not to
representations before all of State government. CEO 00-20, CEO 00-11, CEO 02-12, CEO 12-4.
Actions necessary to carry out, as opposed to actions to obtain, a contract with one's former agency
apparently do not constitute "representation" within the meaning of the prohibition (CEO 00-6;
CEO 01-5; CEO 05-16; CEO 05-19, note 5; CEO 06-3; CEO 09-5; and CEO 12-17); but see F.S.
112.3185 below. CEO 11-19 found that one's provision of good-faith responses to unsolicited
inquiries for information would not amount to prohibited "representation."
7. Does not apply vicariously to other members of one's post-public-service
firm. CEO 00-20; CEO 09-5.
8. One was found to be an "appointed" state officer when he was chosen by
other members of his public board rather than selected by a more traditional method of
"appointment." CEO 13-6.
9. Has been found not to apply where the former employee is listed in bid
response documents written or filed by another person. CEO 09-6.
10. Former employees are exempt if their new employment is with another
agency of State (not local or regional) government. CEO 11-22. A State University is an agency
of State government satisfying the exemption. CEO 14-32.
11. Former legislators are not expressly exempted via taking State-level public
employment; but in certain contexts the Commission on Ethics has constructed such an exemption.
CEO 00-7, CEO 00-18. However, the Commission receded from CEO 00-7 and CEO 00-18 in
CEO 09-4.
12. As to a former Attorney General, see CEO 10-22. As to a former
commissioner and chair of the Florida Commission on Offender Review, see CEO 16-13.
13. CEO 13-23 found that a former legislator was prohibited for two years from
asking legislative officials to designate legal services plans as available employee benefits to
enable him to market the plans to legislative employees.
14. F.S. 112.313(9)(a)3.b. (new via Chapter 2013-36, L.O.F.) prohibits former
Legislators from acting as a lobbyist for compensation before an executive branch agency, agency
official, or employee for two years following vacation of office. CEO 13-23.
15. CEO 17-08 addressed the particular work history of a former chief of staff
of the Department of Management Services (DMS), under F.S. 112.313(9)(a)4 and other
provisions of the Code of Ethics. See CEO 17-14 regarding a particular former employee of the
Department of Business and Professional Regulation. CEO 17-17 addressed a former Department
of Environmental Protection employee with a particular work history.
B. Persons who have been elected (not appointed, CEO 07-19, note 3) to any county,
municipal, school district, or special district office are prohibited by F.S. 112.313(14) from
representing another person or entity for compensation before the government body or agency of
which they were an officer for a two-year period after leaving office. For the statute to apply, one
must have been elected to office, not merely appointed to an elective office. CEO 09-16. Was
found to be applicable to representations before the former governing body, before individual
members of the former governing body, and before aides to members; but not to representations
before other boards of the political subdivision that are not the "governing body" or "part of the
governing body." CEO 05-4. However, F.S. 112.313(14), as amended by Section 2, Chapter
2006-275, L.O.F., now defines "government body or agency," differently for various local

37
governments. As a result, a former county commissioner is prohibited for two years after he leaves
office from representing a client for compensation before the county commission collegially, or
its individual members, as well as the commissioners' aides and others. "Representation" includes
mere physical attendance at a county commission meeting or workshop, even if the former county
commissioner does not directly address the commission. CEO 06-22. A former county
commissioner is not prohibited from merely attending, in behalf of a client for compensation,
gatherings which are not regular meetings of the county commission and which are not advertised
or noticed under the Sunshine Law; however, the former county commissioner is prohibited from
making comments in behalf of a client at such a gathering if a county commissioner or one or more
enumerated county employees is present. CEO 07-6. Also, see CEO 09-20. In CEO 12-3, F.S.
112.316 was applied to negate the prohibition as to a former school board member representing a
school district direct support organization, the Commission on Ethics finding a unity of interest.
CEO 13-10 found that the prohibition restricted a former school board member's representation of
his own company before his former school district. See CEO 16-15 regarding a former county
commissioner engaging in various activities, including activities involving her LLC and its clients,
within two years of vacating her public position.
C. At the option of the local governing body through ordinance or resolution,
appointed county, municipal, school district, and special district officers and employees of these
entities may be subjected to a similar two-year prohibition, except for collective bargaining
matters, under F.S. 112.313(13). However, if enacted, such an ordinance or resolution is not within
the jurisdiction of the Commission on Ethics and a violation of it would not constitute a violation
of the State Code of Ethics (CEO 07-19).
D. See Chapter 2016-263, Section 18, L.O.F., for an additional prohibition regarding
former officials of the City of Webster.

XVIII. ADDITIONAL RESTRICTIONS (STATE-LEVEL EMPLOYEES;

LEGISLATORS)
A. F.S. 112.3185(2) prohibits certain public employees who have a role in the
procurement of "contractual services" (as set forth in Chapter 287) from simultaneously being an
employee of a public agency and an employee of a person contracting with the agency.
B F.S. 112.3185(3) contains a restriction, unlimited in duration (CEO 11-24, note 6),
on former public employees holding employment or a contractual relationship with a business
entity in connection with any contract in which the employee participated personally and
substantially [see CEO 02-17, CEO 03-8 (former State Technology Office employees), CEO 05-9
(former Department of Juvenile Justice employee), and CEO 08-17 (former FDOT employee)
regarding "substantial"] through decision, approval, disapproval, recommendation, rendering of
advice, or investigation (activities concerning development or procurement of a contract, CEO 83-
8, CEO 06-3, CEO 11-20). Also, see CEO 11-20 (former FDOT intelligent transportation system
project manager) regarding "substantial," in a very specific context; and see CEO 12-5. Does not
apply to work for a governmental entity (CEO 88-32); applies only to employment/contractual
relationship "in connection with" the contract (CEO 01-6, CEO 09-11); and can apply to contracts
coming into existence before or after one leaves public employment (CEO 00-6; CEO 11-20; CEO
11-24, note 6). Along with F.S. 112.3185(4), has been found not to be violated in a specific
situation due to the application of F.S. 112.316 (CEO 05-16); see also CEO 05-19. The public
employee's public agency duties must have concerned a particular contract between the agency

38
and the business entity in order for a violation to exist; mere participation in an entire program or
subject matter (without participation as to the particular contract) will not violate the statute (CEO
06-3, note 6). The restriction cannot be avoided by employment with a different company than
the company contracting with one's former public agency (e.g., cannot be avoided via
subcontracting), if one's actual post-public-employment (private) work is in connection with the
contract (CEO 07-16, note 3). CEO 17-06 found the statute not to apply in the context of a certain
Space Florida contract. See CEO 17-08 regarding a former chief of staff of the Department of
Management Services (DMS). CEO 17-09 concerned a former Chief Inspector General in the
Executive Office of the Governor. However, when the agency employee's position is eliminated
and his or her duties are performed by the business entity, this subsection does not prohibit him or
her from employment or contractual relationship with the business entity if the employee's
participation in the contract was limited to recommendation, rendering of advice, or investigation
and if the agency head determines that the best interests of the state will be served thereby and
provides prior written approval for the particular employee.
C. F.S. 112.3185(4) is a two-year restriction on former public employees holding
employment or a contractual relationship with any business entity in connection with any contract
for "contractual services" which was within the employee's responsibility. But see CEO 01-5
(former DBPR employee "outsourcing" with DBPR) and B above. "Within responsibility" is not
mere incidental contact with the contract (CEO 93-2, CEO 06-3). However, "within
responsibility" includes situations in which one is the supervisor of another who actually
participates (for example, who actually monitors/manages) regarding a contract (CEO 07-16, CEO
01-6); also, see CEO 08-17 and CEO 11-24. Depending on particular facts, restriction can be
negated by F.S. 112.316, Florida Statutes (CEO 07-16; and CEO 12-20, in a particular
circumstance regarding one who was in the chain of supervision of actual monitors/managers);
see, also, CEO 18-18 (former FDOT construction manager). Unlike F.S. 112.3185(3), cannot
apply to contract not in existence until after employee leaves public employment (CEO 84-30,
CEO 00-6, CEO 02-17, CEO 03-8, CEO 11-20, CEO 11-24). "Contractual services" are defined
as set forth in F.S. Chapter 287. CEO 06-3; F.S. 112.3185(1)(a). The restriction cannot be avoided
by employment with a different company than the company contracting with one's former public
agency (e.g., cannot be avoided via subcontracting), if one's actual post-public-employment
(private) work is in connection with the contract (CEO 07-16, note 3; CEO 11-24). But, the
prohibition is specific to particular contracts; it does not encompass entire programs or subject
matters. CEO 11-24. However, if the agency employee's position is eliminated and his or her
duties are performed by the business entity, this subsection may be waived by the agency head
through prior written approval for a particular employee if the agency head determines that the
best interests of the state will be served thereby. CEO 11-24, note 7. As to the mechanics of
waiver in a certain context, see CEO 14-22 (former State University employee). Was found to be
inapplicable to purchases from, as opposed to purchases by, the Florida Lottery. CEO 13-8. CEO
15-15 concerned a former DCF contract manager accepting employment with a managing care
entity; and see CEO 16-6 (not applying F.S. 112.316 to negate conflict in a given situation). CEO
17-06 found that a certain Space Florida contract did not involve "contractual services." See CEO
17-08 regarding a former chief of staff of the Department of Management Services (DMS). CEO
18-09, former employee of Department of Economic Opportunity contracting with recipient of
specific legislative appropriation.
D. F.S. 112.3185(5) caps the amount of money (at the amount of annual salary at
severance from public employment) a former public employee can be paid by his or her former

39
agency for "contractual services" provided to the agency during the first year after the employee
vacates his or her public employment; and the gross amount paid, rather than the net received, is
the measure (CEO 08-14). This prohibition may be waived by the agency head for a particular
contract, upon a time/cost savings to the State determination by the head. CEO 01-5. Applies to
situations where a former employee (personally or through a closely-held entity) contracts with
his or her former agency; does not apply to situations where one works arm's length for a business
entity contracting with his or her former agency [this is the type of situation addressed by F.S.
112.3185 (3) & (4)]; see CEO 93-2 and CEO 00-6. If former public employee is employed at
arm's length by a bona fide company (rather than being employed by his or her former public
agency or by a sham/straw man company), the prohibition does not apply, regardless of the amount
of money paid to the former public employee by the bona fide company. CEO 05-13; CEO 08-
17; CEO 11-24.
E. F.S. 112.3185(6) contains a prohibition similar to that contained in F.S. 112.313(3).
However, the prohibition is broader in that it applies in part to an employee's "relative," as defined
in F.S. 112.312(21), and not just to an employee's spouse or child. The prohibition does not apply
to local government officials. CEO 11-04, note 1.
F. Regarding F.S. 112.3185, see, for example, CEO 86-21 (former FDOT attorney,
note that definition of "contractual services" has changed since opinion issued); CEO 87-8 (former
FDOT engineer); CEO 93-2 (former FDOT public transit specialist); CEO 00-1; CEO 00-6 (FDOT
selected exempt service employee); and CEO 01-5 (former DBPR employee "outsourcing" with
DBPR). CEO 18-01 found that none of F.S. 112.3185 applies to a former employee of the Florida
Housing Finance Corporation.
G. "Agency" is specially defined within the statute; but "employee" has its usual and
ordinary meaning. CEO 12-5, note 2. As to an application of F.S. 112.3185 to former State
University employees, see CEO 88-12 and CEO 08-14.
H. Also, Article II, Section 8(e), Florida Constitution, and F.S. 112.313(9)(a)3 contain
term-of-office representation prohibitions for legislators. They apply to representation before
State-level (not local) agencies. CEO 03-11; CEO 09-8; CEO 09-13. See CEO 13-4 as to State
Universities, but not State Colleges or Community Colleges, being "state agencies." Exempt from
the prohibitions are representations before judicial tribunals involving State agencies; but note that
formal administrative proceedings pursuant to F.S. Chapter 120 (DOAH hearing officer/ALJ
proceedings) have not been found to be within the "judicial tribunal" exemption. CEO 91-54, CEO
84-6, CEO 78-2. In CEO 11-3, the Commission found that a State Representative would not be
personally "representing" another person or entity for compensation before a State agency when
negotiating with a law firm to extend a contract for his expert witness services, when acting as an
expert witness in fulfillment of the contract and testifying in court, or when consulting with counsel
or communicating with agents and employees of the Department of Financial Services, where the
law firm represented the Department in litigation.

XIX. VOTING CONFLICTS OF INTEREST

A. A voting conflict arises when the official is called upon to vote on:

any measure which would inure to the officer's special private gain
or loss; which he or she knows would inure to the special private
gain or loss of any principal by whom the officer is retained or to

40
 the parent organization or subsidiary of a corporate principal by
which the officer is retained; or which the officer knows would inure
to the special private gain or loss of a relative or business associate
of the public officer . . . .

F.S. 112.3143.
Note: gain or loss to an entity (for example, a corporation) in which a natural person owns a
substantial interest necessarily constitutes gain or loss to the natural person. CEO 90-54, Question
2; CEO 06-20, note 6; CEO 08-7, Question 1. Similarly, see CEO 10-6 regarding family/closely-
held entities. F.S. 112.3143(1)(d) defines "special private gain or loss" to mean "an economic
benefit or harm . . . ."; e.g., an effect on one's kayak rental business (CEO 16-2).

1. A "principal by whom the officer is retained" includes: the officer's

employer (CEO 78-27); clients of one's multi-discipline planning/development firm (CEO 11-6);
a client of the officer's legal, accounting, or other professional practice (CEO 84-11, CEO 84-1,
CEO 76-107, CEO 78-59, CEO 79-2, CEO 85-14, CEO 08-7, Question 1, CEO 11-6, CEO 11-15;
but see CEO 03-7 regarding an "of counsel" relationship); a corporation for which the officer
serves as a compensated director (CEO 84-107); and clients of an official who is an insurance
agent (CEO 94-10)—but, compare CEO 09-19. However, a non-lawyer employee of a
law/lobbying firm was not found to be retained by clients of the firm other than her clients,
although she would be retained by the firm (CEO 08-13). A corporation which wholly owns a
corporation which wholly owns another corporation which employs a city council member is a
parent organization of a corporate principal by whom the council member is retained (CEO 03-
13). Depending on the facts of a given situation, persons or entities other than the person or entity
who signs one's paycheck can also be one's employer or principal. CEO 06-21; In re Irving
Ellsworth, Comm. on Ethics Compl. No. 02-108 (final order 06-024), affirmed, per curiam, as
Ellsworth v. Commission on Ethics, 944 So. 2d 359; and CEO 09-2. Note that the principal-agent
relationship must exist at the time of the vote; the voting conflicts law addresses present (not past
or possible future) employment. CEO 06-5, CEO 09-9. F.S. 112.3143 now defines, via Chapter
2013-36, L.O.F., "principal by whom retained." The definition mirrors the Commission's
decisional history.
2. Situations where the person or entity in question has not been found to be a
"principal by whom the officer is retained" include: the officer's church (CEO 90-24); the officer's
landlord (CEO 87-86, CEO 08-12); a homeowner's association of which the officer is a member
(CEO 84-80); a non-profit corporation of which the officer is an uncompensated director (CEO
84-50; CEO 08-4, Question 4; CEO 09-7; CEO 10-2); an economic development council (EDC)
of which one is an uncompensated board member (CEO 14-11, CEO 14-12); a charter school of
which one is an uncompensated board member (CEO 11-23); the hospital where the officer is on
the medical staff (CEO 84-3, CEO 02-16); customers of the officer's retail store (CEO 76-209); a
person with whom the officer merely holds a contractual relationship (CEO 08-1); a volunteer fire
department from which a city commissioner does not receive funds and for which he is not an
officer or director (CEO 08-22); a developer for whom an insurance broker previously obtained a
policy (CEO 09-19); and a principal of an officer's spouse or other relative (CEO 11-4, CEO 11-
8)—but see the discussion below regarding votes affecting an officer's relatives.
3. One's "relative" is defined to include only one's father, mother, son,
daughter, husband, wife, brother, sister, father-in-law, mother-in-law, son-in-law, and daughter-

41
in-law. F.S. 112.3143(1)(c). However, in CEO 10-6, notwithstanding that "brother-in-law" is not
included in the definition, a voting conflict was found because the vote/measure affecting the
brother-in-law of a mosquito district commissioner also affected the commissioner's "sister" (a
relationship within the definition), due to the sister and her husband (the brother-in-law) sharing a
household and living expenses. Note that a measure affecting a public officer's relative's private
firm (e.g., an officer's husband's employer) or its clients can, but does not necessarily, inure to the
special private gain or loss of the relative. CEO 07-5, CEO 08-30, CEO 11-4 (county
commissioner's son-in-law non-equity shareholder in law firm when county commission voting on
land use matter in which firm is representing the property owner), CEO 11-8 (city commissioners
voting on contract where bidders employ their sons), CEO 11-16, note 3 (planning commissioner's
wife employed by city development corporation); CEO 12-11 (city councilmember voting on
proposal for city contract for law enforcement services with sheriff's office where councilmember's
father is employee of sheriff's office).
4. "Business associate" is defined to mean "any person or entity engaged in or
carrying on a business enterprise with a public officer, public employee, or candidate as a partner,
joint venture, corporate shareholder where the shares of such corporation are not listed on any
national or regional stock exchange, or co-owner of property." F.S. 112.312(4). In order for
persons to be "business associates" they must be engaged in a common business undertaking (a
"business enterprise"); it is not sufficient that they merely hold a nominal status in relation to one
another; see CEO 98-9 in which the Commission found that common ownership of a houseboat
used for recreational (not commercial) purposes (even via ownership of shares of stock of a for-
profit corporation holding title to the houseboat) did not make the owners business associates of
one another. Also, see CEO 01-17 (county commissioner member of educational/networking
forum not a business associate of other forum members by virtue of forum membership). In CEO
08-4, it was determined that other directors of a bank's board of directors are not, by virtue of being
directors, business associates of a county commissioner/bank director. CEO 14-14 found that
persons who both own stock (not listed on any national or regional exchange) in a bank's holding
company are business associates. In CEO 08-12, a residential landlord and tenant were not found
to be business associates via the rental. CEO 09-2 did not determine that persons who merely held
responsibilities for a corporation were business associates; and see CEO 09-12. Note that the
definition has been found to require a present, not a past or possible future, relationship (CEO 09-
12). CEO 15-12 found that a mayor/commissioner and a person or entity from whom he purchased
personal website hosting and management were not business associates.
5. A "public officer" is any person elected or appointed to hold office in an
agency, including persons serving on an "advisory body." F.S. 112.3143(1)(b). Note F.S.
1002.33(26), subjecting board members of "private" charter schools to F.S. 112.3143; F.S.
288.901(1)(c), regarding the board of directors of Enterprise Florida, Inc.; F.S. 445.007, regarding
regional workforce boards; F.S. 627.311(5)(m), regarding joint underwriters and joint reinsurers;
and F.S. 627.351(6), regarding Citizens Property Insurance Corporation.
6. Note that members of school boards are subject to the voting conflicts law
(F.S. 112.3143) regarding measures which would inure to the special private gain or loss of their
relatives (e.g., measures to hire their relatives to school positions), even though the anti-nepotism
law (F.S. 112.3135), as opposed to F.S. 1012.23(2), is not applicable to school boards and school
districts. CEO 87-50, AGO 72-72, AGO 82-48.
B. Voting Conflict Duties of State Public Officers

42
 1. Via Chapter 2013-36, L.O.F., effective May 1, 2013, State-level public
officers are prohibited from voting on any matter that the officer knows would inure to his or her
special private gain or loss. The new law also changes disclosure and filing requirements for State-
level public officers. See CE Form 8A (the version incorporating the specifics of the new law).
Also, Legislators have a choice of forms for the required disclosures. Further, under the new law,
if disclosure of specific information would violate confidentiality or privilege pursuant to law or
rules governing attorneys, a public officer, who is also an attorney, may comply with the disclosure
requirements of the voting conflicts law by disclosing the nature of the interest in such a way as to
provide the public with notice of the conflict. Similar to appointed local officers, appointed State
officers also have requirements regarding "participation" in certain matters that are not applicable
to elected officers. In CEO 11-12 (see note 8), the Commission found that an appointed governing
board member of a utility authority was subject to the "participation" limitations of F.S.
112.3143(4) regarding matters of the authority, notwithstanding that he was a nonvoting member
of the board. See F.S. 288.92, as amended by Chapter 2014-183, L.O.F., regarding the members
of the board of directors of the Florida Tourism Industry Marketing Corporation. Also, see F.S.
310.151(1)(c) regarding participation by members of the Pilotage Rate Review Committee. And
see F.S. 627.351(6)(d)3 regarding Citizens Insurance board members. CEO 17-07 found that
members of the Board of Directors of the Florida Housing Finance Corporation are not "state
public officers" subject to the voting conflicts law of F.S. 112.3143, even though F.S. 112.313 is
applicable. A member of the Board of Governors of the State University System is a "state public
officer." CEO 17-12.
C. Voting Conflict Duties of Local Public Officers
1. If there is a voting conflict under the terms of the statute, a local official
holding an elective position must:
a. Abstain from voting on the measure;
b. Before the vote, publicly state to the assembly the nature of his or
her interest in the matter; and
c. Within 15 days of the vote, file a memorandum of voting conflict
(Commission Form 8B) with the person responsible for recording the minutes of the meeting, who
incorporates the form in the minutes.
d. However, as with State-level officers who are attorneys (see, above),
local officers have an alternative method of disclosure. F.S. 112.3143(5), as amended by Chapter
2013-36, L.O.F.
[Note that elected officials are not subject to the same limitation on their ability to "participate" in
the matter as appointed officials; and note that one appointed to fill a position normally filled by
election is not an appointed official (CEO 87-14, CEO 09-9). "Participate" is defined in F.S.
112.3143(4)(c) to mean "any attempt to influence the decision by oral or written communication,
whether made by the officer or at the officer's direction." In CEO 11-12 (see note 8), the
Commission found that an appointed governing board member of a utility authority was subject to
the "participation" limitations of F.S. 112.3143(4) regarding matters of the authority,
notwithstanding that he was a nonvoting member of the board. Also, note that the voting conflicts
law itself (as opposed to possible quasi-judicial/due process concerns) does not require full or
complete "recusal." CEO 11-9.]

2. Local officials holding appointive positions must follow more complex

guidelines. If they do not intend to "participate" in the measure, they follow the same procedures

43
as elected officials: make the oral declaration, abstain, and follow up with the written form within
15 days. If they do intend to "participate," they must abstain but must make their disclosure before
they participate. This is accomplished by either:
a. Filing the memorandum of voting conflict (Form 8B) prior to the
meeting, in which case the memorandum is to be provided immediately to the other members of
the agency and is to be read publicly at the next meeting after its filing; or
b. If the disclosure has not been made prior to the meeting at which the
measure will be considered or the conflict was unknown prior to the meeting, making the
disclosure orally at the meeting before "participating," followed by the written memorandum
(Form 8B) within 15 days after the oral disclosure, which would be provided immediately to the
other members of the agency and be read at the next meeting after its filing.
c. Also, see F.S. 445.007 regarding local workforce development
boards.
d. See Chapter 2016-263, Section 18, L.O.F., regarding officials and
employees of the City of Webster.
D. Special Private Gain or Loss--Size of the Class of Persons Affected
1. Obviously, a measure to reduce taxes would inure to the private gain of each
taxpayer, including the public officials who are to vote on the proposal. The Commission has
recognized that the concept of "special" gain can relate to the number of persons affected, stating:

Whether a measure inures to the special private gain of an officer

or his principal will turn in part on the size of the class of persons
who stand to benefit from the measure. Where the class of persons
is large, a special gain will result only if there are circumstances
unique to the officer or principal under which he stands to gain more
than the other members of the class. Where the class of persons
benefiting from the measure is extremely small, the possibility of
special gain is much more likely. [CEO 77-129.]

2. On the one hand, where the official would be the only beneficiary of the
measure, there clearly would be "special" gain. See CEO 89-16 (citizen advisory task force
member prohibited from voting to recommend the approval of his own application to receive
community development block grant funds).
3. On the other hand, the Commission advised that a city council member
would not be prohibited from voting on a proposed sign ordinance where the council member
owned a commercial art shop that produced signs, among other products, and other members who
owned an advertising business that recommended and purchased billboard space for its clients and
who owned an electrical contracting company that had contracted to do work for a sign company
also could vote on the ordinance. As the ordinance would have only an indirect effect on the
council members' businesses and there was no indication that the members would be affected by
the ordinance to a significantly greater or lesser degree than other affected businesses, the
Commission concluded that the ordinance would not inure to the "special" gain of the members.
(CEO 86-59)
4. Subsequent decisions by the Commission indicate that the threshold for
"special gain" occurs when the official constitutes around 1-2% of the size of the class of persons
affected. The Commission has concluded that a vote on an ordinance limiting the number of

44
wrecker businesses on a city wrecker rotation list from 18 to 11 violated the statute when the city
councilman worked for one of the 11 wrecker companies. In re Thomas R. Tona, 13 FALR 1845
(Fla. Comm. on Ethics 1989). Similarly, the Commission concluded that a county commissioner
had been prohibited from voting to pave the road to his residence, where his was one of 13
residences on the paved portion and he owned the majority of the land abutting one side of the
paved portion of the road. In re T. Butler Walker, Comm. on Ethics Compl. No. 92-30 (1994).
5. In groups of a larger size, the Commission advised in CEO 93-10 that a
town council member was prohibited from voting on a measure to resolve a real property
ownership dispute between the town and 43 private property owners, including the council
member; see also CEO 04-10 (measure affecting 55 employees one of whom is relative of public
officer requires abstention). In CEO 90-64, the Commission concluded that a city commissioner
was prohibited from voting on a renovation project that would benefit property in which he owned
an interest, where part of the cost of the project would be assessed against the property owners.
There, the commissioner owned 50% of one of 55 parcels that would be affected, the parcels were
owned by over 40 persons or entities, and the property's frontage was 2.7% of the total frontage
upon which the assessment would be based. In CEO 92-37, the Commission advised that a city
commissioner would be prohibited from voting on a measure to add to a local historic preservation
district an area that included five hotel or apartment buildings owned by closely-held corporations
that were owned by him and his relatives. There, the buildings constituted either 5 of 60 sites to
be included or 5 of 168 sites to be included, depending on how the measure was framed. In CEO
95-4, the Commission advised that a county planning commissioner would be prohibited from
voting on a comprehensive plan amendment affecting the designation of 1,200 acres of property
owned by the planning commissioner, his relatives, and his business associates, where the measure
would have affected a total of approximately 32,000 acres.
6. A series of other opinions involve situations where the class of persons
affected was sufficiently large that no "special" gain was deemed to occur. In CEO 90-55, the
Commission advised that a city mayor was not required to abstain from voting on measures
involving the proposed expansion and renovation of a private club of 2,000 members. In CEO 87-
18, the Commission concluded that a planning commissioner was not required to abstain from
voting on a comprehensive plan amendment that would have affected 29,000 acres because his
principal was leasing 300 acres of the affected area. In CEO 90-71, the Commission advised that
a town commissioner was not prohibited from voting on issues relating to a project that would
benefit his neighborhood and that would be assessed against the property owners in the
neighborhood, when the commissioner owned 1.2% of the 83 lots that would be included in the
assessment. Also, see CEO 99-12 (regarding an airport authority commissioner), CEO 00-13
(regarding a city commissioner receiving and voting on pension benefits), CEO 11-01 (city
councilmember voting on collective bargaining measures affecting her police officer-husband),
CEO 06-20 (regarding a county commissioner voting on measures concerning a proposed judicial
complex near her properties), and CEO 07-22 (county commissioner voting on matter affecting
developers including homebuilder spouse). But see CEO 06-21 (no special private gain where
each of a town's residents was similarly impacted by a rezoning vote, notwithstanding the small
number of town residents) and CEO 07-17 (no special private gain where votes will impact
virtually all of a town's residents similarly). CEO 10-2 found no special private gain or loss to a
county commissioner's husband who was one of many healthcare providers who would be
similarly affected by a measure regarding a healthcare information network. See CEO 12-6
regarding a city councilmember receiving pension benefits as a former city firefighter voting on

45
an increase in benefits. CEO 13-20 found no voting conflict where a mayor voted on de-
annexation from a town's boundaries the part of a subdivision (108 lots/85 homes) where he
resided. CEO 14-19 found a sufficiently large class to negate a voting conflict regarding the siting
of a baseball stadium. CEO 18-14, property within city center zoning district.
7. Other decisions involve officials whose interests are proportionately large,
when compared to the other members of the class of persons affected. For example, in one case
the Commission concluded that a county commissioner should not have voted on the extension of
a road along a boundary of her property, where the commissioner owned 260 acres, was one of 32
property owners along the proposed road extension, and was the fifth largest land owner along the
road extension, with the next largest land owner having 20 acres. In re Jeanne McElmurray,
Comm. on Ethics Compl. Nos. 87-24 & 26 (Stipulated Final Order 1988).
8. Budgets and appropriations acts are another type of measure that have a
broad impact, but that may, in one aspect (e.g., line item), inure to the gain or loss of the voting
official or the official's employer/principal. CEO 15-01 (Question 2) found a voting conflict in
such a situation, receding from several CEOs. See CEO 16-9 regarding votes/measures where the
funding of an applicant may affect the availability of funding for other applicants.
9. A vote/measure of a SAC (school advisory council) to award "A plus"
school recognition moneys to teachers/staff of the school, including teacher/staff members of the
SAC, was not found to involve "special" gain or loss, notwithstanding the number of persons
affected by the vote/measure, provided the vote/measure did not address a particular
person/customized amount. CEO 10-21.
10. The statute now defines, via Chapter 2013-36, L.O.F., "special private gain
or loss." The definition is consistent with the Commission's decisional history, but makes it clear
that gain or loss must be of an "economic" nature.
E. Special Private Gain or Loss--Remote or Speculative
1. In some situations the Commission has concluded that any gain or loss
resulting from the measure would be so remote or speculative that it could not be said to inure to
the official's special gain or loss. In CEO 85-46, the Commission advised that a city commissioner
could vote on a petition for annexation of property, where the commissioner's employer had sold
the property, retained a mortgage, and also owned adjoining property; see also CEO 09-14 (county
purchase of airport buffer where mortgage retained). In CEO 93-4, a city commissioner was
advised that he could vote on rent increases for a mobile home park owned by the city and located
near a proposed recreational vehicle park he owned, because the possibility that he could in the
future justify charging higher rent for his park if the city's park had higher rent was too speculative
to conclude that the rent increases would inure to his special gain. See also CEO 05-2 (village
affordable housing committee member owner of mobile home park and voting on mobile home
park measures), CEO 05-3 (county commissioner and relatives owning interest in parcels of land
near proposed road), CEO 05-17 (airport authority member voting on matters concerning road
project near her business), and CEO 09-7, note 7, (county commissioner voting to fund EDC where
his corporate cash pay-out tied to land sale). In CEO 88-27, the Commission concluded that a city
commissioner was not prohibited from voting on the rezoning of property that was being sold
contingent upon rezoning, where the commissioner supported another group that was interested in
purchasing the same property and the commissioner probably would have been the building
contractor for that group in the event the group were to purchase the property. There, the
Commission reasoned that the failure of the rezoning measure would not be the only contingency
that would have to occur for the commissioner to benefit from the development of the property, as

46
the existing owner would have to agree to sell to the group. However, the Commission noted, if
the property were sold to the group, the commissioner could not vote on matters affecting the
development of the property so long as he were the contractor for the development. See also CEO
00-8 and CEO 01-18. In CEO 07-14 and CEO 07-15 (identical opinions issued to two city
commissioners), the Commission found that any gain or loss would be remote or speculative
regarding measures to hire or dismiss city attorneys who might counsel city conduct regarding
lawsuits to which the city was a party and to which the commissioners were nominal, private-
capacity parties; and also found that city measures to continue or settle the lawsuits, or measures
to repeal the ordinance underlying the litigation, would not cause gain or loss to the commissioners,
inasmuch as they were nominal parties not personally responsible for paying for the litigation. In
CEO 10-8, a mayor was not found to have a voting conflict regarding measures concerning a
commuter rail station in his city, where he was employed by a hospital corporation whose interests
in a neighboring city were tied to commuter rail. See CEO 13-9 finding that a county
commissioner was not prohibited from voting on the sheriff's budget where the commissioner's
brother was a deputy sheriff applicant.
2. Several Commission opinions have involved the impact of nearby
development on a business owned by the voting official or employing the official--all of these have
concluded that any gain resulting from the development was too remote and speculative to inure
to the special gain of the official or employer. See CEO 85-77, CEO 85-87, CEO 86-44, CEO 89-
32, CEO 91-70, CEO 06-8, and CEO 06-20; however, compare CEO 01-8. Later, under the
particular facts of CEO 08-1, a city's relinquishment of an outfall (drainage) easement burdening
property of a developer upstream from a city councilman's property was found not to create a
voting conflict. CEO 14-03 found that a county commissioner was not presented with a voting
conflict regarding measures to amend or approve a management agreement and a purchase and
sale agreement for a county-owned airport adjacent to his property, determining any gain or loss
to be remote and speculative; note, however, that the situation involved an existing airport, not the
locating of an airport where no airport existed. CEO 14-19 found that gain or loss from the siting
of a baseball stadium near already-developed property of a city commissioner would be remote
and speculative.
3. Not every instance of indirect gain has been classified as too remote and
speculative to constitute "special gain," however. In CEO 88-27, the Commission advised that a
city commissioner should abstain from voting on the rezoning of property where his employer had
contracted to purchase the property contingent upon its receiving a particular zoning designation
from the city. In CEO 93-29, the Commission concluded that a city commissioner would be
prohibited from voting on matters involving the city's proposed purchase of property where the
commissioner and his son owned interests in the mortgage encumbering the property. The
Commission also has found a violation where a city/county planning commissioner voted to rezone
a parcel of property to permit a higher density, when the commissioner had assigned his contract
to purchase the property to the rezoning applicant and he was owed $10,000 by the applicant as
part of the assignment. In re John S. Mooshie, 15 FALR 382 (1992), affirmed, per curiam, as
Mooshie v. State Commission on Ethics, 629 So. 2d 138 (Fla. 1st DCA 1993). Voting on altering
the language of a funding agreement has been found not to be remote or speculative as to gain or
loss, where the public officer privately was involved in seeking funding from the program; but
voting on the membership of the program's advisory board was found to present no voting conflict.
CEO 13-19.

47
 4. In some situations, a series of decisions are made, some of which would
inure to the special gain of the official and others of which would not, depending on the
circumstances and the extent of the official's private participation in the process. Construction
projects provide a good example of this. In CEO 89-45, the Commission considered a situation
where a city commissioner owned a steel company that designed and bid steel packages to general
contractors and developers, who generally would appear before the city commission prior to the
commissioner's having submitted a bid on the proposed project. The Commission advised that if
the commissioner had not submitted a proposal at the time of the vote, then any perceived gain to
him would be too speculative to require him to abstain. However, if the commissioner had
contacted or was in the process of negotiating with the contractor or developer, but had not yet
submitted a proposal, then he would be required to abstain. See also CEO 11-18. But see CEO
07-7, in which a city councilman whose company was a supplier of a local manufacturer of fire
trucks was not presented with a voting conflict regarding a measure to provide financial incentives
to the manufacturer in an effort to keep the manufacturer from relocating. See also CEO 00-5
(effect of transient rental ordinance on a grocery store not remote and speculative). Citing the
remote and speculative nature of any gain or loss, the Commission determined that no voting
conflict would be created were a city commissioner to vote on a measure to amend the city's
affordable (work force) housing ordinance, where one of the commissioner's private legal clients
was a potential developer of affordable housing within the city. CEO 05-15. Also, see CEO 12-
19 regarding voting on recommendations concerning expansion of alcohol sales. And see CEO
06-21 (regarding Town of Marineland). In CEO 12-1, any gain or loss to businesses owned by
city commissioners and frequented by cruise ship passengers due to a city commission
vote/measure to seek a ship channel-widening feasibility study was found to be remote and
speculative. In CEO 12-3, the Commission found that a school board member was presented with
a voting conflict regarding a measure which would select her for or eliminate her from a position
of employment to begin after she left the school board.
5. The new statutory definition of "special private gain or loss" also recognizes
that the uncertain, or remote and speculative, nature of a given measure/vote is important under
the voting conflicts law.
F. Special Private Gain or Loss-- Procedural or Preliminary Issues
1. Some measures are simply procedural or preliminary to the later actions that
would result in actual gain or loss, and therefore do not present voting conflicts for officials who
would have voting conflicts if called to vote on more substantive measures concerning the same
subject. See CEO 78-74 (removing item from consent agenda, to enable it to be discussed).
However, in CEO 93-10 the Commission concluded that a town council member who was
prohibited from voting on a measure to resolve a real property ownership dispute between the town
and private property owners, including the council member, also would be prohibited from voting
on a measure to order a survey regarding the disputed property. The Commission reasoned that,
since the dispute could not be resolved without a survey being done and the resolution of the
dispute would inure to the special gain of the council member, the decision not to order a survey
would effectively preclude the resolution of the dispute. Therefore, ordering a survey of the
disputed property would not simply be preliminary to an issue where gain or loss could occur.
G. Exceptions to the Voting Conflict Rules
1. When the principal retaining the official is a public agency, the Commission
has concluded that the official is not prohibited from voting on a measure inuring to the special
gain of the agency and is not required to make any specific disclosures. CEO 86-86, CEO 88-20,

48
CEO 91-20, CEO 15-8. See F.S. 112.312(2) for the definition of "agency." CEO 13-22 found the
Florida Virtual School to be an "agency."
2. Commissioners of community redevelopment agencies created or
designated pursuant to F.S. 163.356 or 163.357, as well as officers of independent special tax
districts elected on a one-acre, one-vote basis, are not prohibited from voting. F.S. 112.3143(3)(b).
CEO 12-7. In CEO 86-13 and CEO 10-24, the Commission advised that a CRA official may vote
on matters affecting his or her interests but still would be required to publicly announce the conflict
and file a voting conflict memorandum; similarly, see CEO 87-66, regarding a community
development district supervisor elected on a one-acre, one-vote basis. And see F.S. 163.367(2), a
provision outside the Code of Ethics, which independently requires certain disclosures by CRA
officials, commissioners, and employees.
3. Public officers are not prohibited from voting on matters affecting their
salary, expenses, or other compensation as a public officer, as provided by law. F.S. 112.313(5).
See CEO 08-24 and CEO 08-25, regarding voting to appoint oneself to paid mayor or council
office. Under the circumstances presented, CEO 14-17 found that a mayor was not prohibited
from voting on an amendment to the city budget which established the salary of the mayor. Note
also that this provision specifies that local government attorneys may consider matters affecting
their salary, expenses, or other compensation as the local government attorney, as provided by law.

Note also the "voting requirements law," F.S. 286.012. See CEO 08-11 and CEO
11-8. This law was amended via Chapter 2014-183, L.O.F., to extend the exception to its voting
requirement to certain quasi-judicial contexts, and to provide for potentially differing disclosures
depending on whether one's possible voting conflict is based in a local, versus a State, ethics
prohibition.

XX. FINANCIAL DISCLOSURE (FORM 6- "FULL" DISCLOSURE)

A. Who Must File? Note: See Form 6, available on the Commission's website
(www.ethics.state.fl.us), for a listing of a number of persons/positions who must file; however, if
one is unsure as to whether he or she must file, the Commission on Ethics should be contacted.
1. "Full" disclosure (Commission Form 6--Full and Public Disclosure of
Financial Interests) is required of persons holding and seeking elective constitutional office, and
is required of other public officers, candidates, and public employees as determined by law. Art.
II, Sec. 8(a) and (h), Fla. Const.
B. When Is the Form Due, and Where Is It Filed?
1. Incumbents file with the Commission on Ethics in Tallahassee no later than
July 1 of each year. If the form is not filed timely, the Commission sends a reminder notice,
advising of a grace period until September 1st; those who ignore the grace period will face an
"automatic" $25-per-day-late fine, up to a maximum of $1,500, and may face additional penalties
if an ethics complaint is filed. F.S. 112.3144(5). Willful refusal to file after receiving a maximum
automatic fine could result in removal from public office or employment. Chapter 2014-183,
L.O.F., amending F.S. 112.3144. Article V, Florida Constitution, judges and justices do not
receive reminder notices and do not get the grace period; however, they are not subject to the
statutory automatic fines (their conduct is cognizable by the Judicial Qualifications Commission).

49
 2. Candidates must file prior to or at the time they file their qualifying papers,
with the officer before whom they qualify. Plante v. Smathers, 372 So. 2d 933 (Fla. 1979); F.S.
99.061; F.S. 99.063; F.S. 105.031.
3. Persons leaving public positions must file (Commission Form 6F) within 60 days of
leaving, unless within the 60-day period the person takes another position requiring full disclosure.
Note that persons required to file a Form 6F must also file a Form 6 on or before July 1, if they
were in office on December 31 of the year prior to the year in which their partial service
necessitated the need for the Form 6F filing.
C. What Must Be Disclosed?
1. Each asset worth more than $1,000 must be described and valued
[household goods and personal effects may be reported in a lump sum--see F.S. 112.3144(3)]. Art.
II, Sec. 8(a) and (h), Fla. Const. The Commission has advised that an "asset" includes all forms
of property interests that can be sold to be applied to the payment of one's debts. CEO 87-84 and
CEO 78-1. The asset should be valued at fair market value, as of the date used for reporting one's
net worth. Property owned solely by one's spouse need not be reported. CEO 77-158. However,
the full value of property held in tenancy by the entirety (held as husband and wife), or otherwise
held jointly with right of survivorship, must be reported. CEO 74-27. Assets held jointly, other
than in tenancy by the entirety or in joint tenancy with right of survivorship, can be reported based
on the percentage of value owned by the reporting person. F.S. 112.3144(4)(a). Investment
products held in IRAs, 401(k)s, the Florida Retirement Investment Plan, the Florida College
Prepaid Plans, and Deferred Option Retirement Accounts should be reported as assets; when funds
are held in a bank, credit union, or other institutional account, the account should be identified as
an asset. CEO 12-10. For disclosing real property, a street address should be used if a street
address exists for the property. For disclosing a vehicle lease, see CEO 14-18.
2. Each liability worth in excess of $1,000 must be described and valued (Art.
II, Sec. 8(a) and (h), Fla. Const.), except for credit card and retail installment accounts, taxes owed
unless reduced to a judgment, indebtedness on a life insurance policy owed to the company of
issuance, contingent liabilities, and accrued income taxes on net unrealized appreciation. F.S.
112.312(14). Valuation depends on the face amount of the debt and the basis for liability (e.g.,
joint or several). For disclosing a vehicle lease, see CEO 14-18. Liability for a debt that is secured
by property owned by the reporting individual but that is held jointly, with right of survivorship,
must be reported at 100 percent of the total amount owed. F.S. 112.3144(4)(b). Liability on a
promissory note only as a guarantor (CEO 86-40) or as a partner (CEO 95-1) is contingent and not
reportable. Liability as a comaker of the note must be reported. CEO 89-5.
3. The net worth of the reporting person as of the close of the prior calendar
year, or a more current date. Art. II, Sec. 8(a) and (h), Fla. Const.
4. Income reporting requirements can be satisfied in one of two ways:
a. Attaching a complete copy of the reporting individual's most recent
income tax return (including all schedules, W2s, 1099s, and attachments); or
b. Reporting the name and address, and amount, of each source of
income exceeding $1,000 received during the prior year, including a statement of all "secondary
sources" of income. "Secondary sources" mean each source of income exceeding 10% of the gross
income of a business entity of which the reporting individual owned more than a 5% interest and
from which the reporting individual received more than $1,000 of gross income. Amounts of
secondary income are not disclosed. Art. II, Sec. 8(h), Fla. Const.; Commission Rule Ch. 34-8,
F.A.C. As to correct reporting of “declined payment of salary,” see CEO 04-8.

50
 5. Amendments (Commission Form 6X) to full disclosure filings are allowed.
However, the curative effect of an amendment can vary.
D. Form 6 filings are scanned and made publicly available through a searchable
Internet database.
E. The law also provides for additional collection methods (garnishment and wage
withholding) for unpaid "automatic" financial disclosure fines. The collections actions statute of
limitations is 20 years.

XXI. FINANCIAL DISCLOSURE (FORM 1- "LIMITED" DISCLOSURE)

A. Who Must File? Note: Consult the Form itself, on the Commission's website
(www.ethics.state.fl.us), for a listing of some persons/positions who must file; however, if one is
unsure of whether he or she is required to file, the Commission on Ethics should be contacted.
"State officers" (CEO 02-15, Question 2), "local officers," and "specified state employees" (for
example, full-time state employees serving as counsel or assistant counsel to a state agency, a
criminal conflict and civil regional counsel, and an assistant criminal conflict and civil regional
counsel), as defined in F.S. 112.3145(1), are required to file the "limited" financial disclosure
statements (Commission Form 1--Statement of Financial Interests). Members of the Marjory
Stoneman Douglas High School Public Safety Commission, CEO 18-10. Not members of the
Virginia Key Advisory Board, CEO 18-11. State university "grants compliance analysts" who
have no authority to apply for or award grants and no authority to decide how grant funds are spent
were determined not to be "grants coordinators," and thus do not have to file (CEO 10-25). Trial
court staff attorneys are not required to file (CEO 03-12); but see CEO 05-12, requiring filing by
various employees of the State Courts System in a Judicial Circuit. Support Enforcement Hearing
Officers appointed pursuant to Rule 12.491(c), Florida Family Law Rules of Procedure are not
required to file (CEO 02-18). A Regional Counsel for the Office of Criminal Conflict and Civil
Regional Counsel is required to file as a "specified state employee" due to his status as a
"purchasing agent" with the requisite purchasing authority. CEO 08-9. Chapter 2017-76, L.O.F.,
changed the filing requirement from Form 6 ("full disclosure") to Form 1 ("limited disclosure")
for some members of the Florida Prepaid College Board. "Local officers" include the following:
1. Persons elected to office in any political subdivision, or appointed to fill a
vacancy in such an office, except for the elected constitutional officers who file Form 6. F.S.
112.3144(2).
2. Candidates for such local offices. F.S. 112.3145(2)(a).
3. Members of various, but not all, appointed bodies. See CE Form 1, F.S.
112.3145(1)(a)2., CEO 01-11, CEO 01-20, CEO 15-10 (St. Augustine Historic Architectural
Review Board), CEO 17-03 (Jacksonville Ethics Commission).
4. Certain personnel of private businesses serving as the chief
administrative/executive officer of a city or other political subdivision. F.S. 112.3136. CEO 10-
01.
5. Members of governing boards of charter schools operated by a city or other
public entity. F.S. 1002.33(26).
6. Any appointed member of a local government board who is required to file
a statement of financial interests by the appointing authority or the enabling legislation, ordinance,
or resolution creating the board. F.S. 112.3145(1)(a)2.
7. Persons holding any of the following positions:

51
 mayor; county or city manager; chief administrative employee of a
county, municipality, or other political subdivision; county or
municipal attorney; finance director of a county, municipality, or
other political subdivision; chief county or municipal building code
inspector; county or municipal water resources coordinator; county
or municipal pollution control director; county or municipal
environmental control director; county or municipal administrator,
with power to grant or deny a land development permit; chief of
police; fire chief; municipal clerk; district school superintendent
(other than those superintendents who file Form 6); community
college president; district medical examiner; or purchasing agent
having the authority to make any purchase exceeding the amount in
F.S. 287.017 CATEGORY ONE, for any political subdivision of the
state or any entity thereof. F.S. 112.3145(1)(a)3.

a. "County or municipal attorney" includes only the city or county

attorney, and not assistant city or county attorneys. CEO 85-49. Includes a city attorney whose
firm is retained as an independent contractor. CEO 08-27.
b. Rather than simply reviewing an employee's title, a functional
analysis of the employee's duties is required to determine if the employee is a "local officer." Thus,
a city building and zoning director not having the power to grant or deny a building permit and
lacking purchasing authority would not be required to file. CEO 84-61. A city public utilities
department director whose responsibilities include the operation of the city's water and sewer
facilities would be considered a water resources coordinator, required to file. CEO 84-70.
c. A "purchasing agent" is defined in F.S. 112.312(20) to mean "a
public officer or employee having the authority to commit the expenditure of public funds through
a contract for, or the purchase of, any goods, services, or interest in real property for an agency, as
opposed to the authority to request or requisition a contract or purchase by another person." Thus,
this category may include a number of administrative personnel whose positions are not specified
otherwise. See CEO 88-62.
d. Members of health facilities authorities created pursuant to Chapter
154, Part III, Florida Statutes, were found not to be "local officers." CEO 03-5. Appointed and
ex officio members of the Citrus Levy Marion Regional Workforce Development Board, Inc. were
not found to be subject to filing financial disclosure (CEO 08-3); but see below regarding Local
Workforce Development Boards.
e. A "finance director of a county, municipality, or other political
subdivision" (required to file via Chapter 2013-36, L.O.F.) was found not to include a finance
director of a sheriff's office. CEO 13-17. CEO 17-11 found one position-holder in a county's
government to be a "finance director" and another to not.
f. Trustees of a voluntary employees' beneficiary association were
found not to be "local officers." CEO 14-25.
8. A non-voting member of a board has been found to be a "member" required
to file financial disclosure (CEO 07-20), and a suspended city commissioner has been found to be
required to file (CEO 10-19).

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 9. Members of Local Workforce Development Boards and the executive
director of such Boards (or the equivalent of the executive director) must file CE Form 1, pursuant
to F.S. 112.3145, unless they are required to file CE Form 6. F.S. 445.007(1).
10. Members of the Jacksonville Transportation Authority file Form 1 with the
Commission on Ethics. F.S. 349.03(3)(a). Members of the Gasparilla Island Bridge Authority file
Form 1 with the Commission on Ethics. Chapter 2012-242, L.O.F.
B. When Is the Form Due, and Where Is It Filed?
1. Candidates for local office must at the time they file their qualifying papers,
with the officer before whom they qualify. F.S. 99.061, 112.3145(2)(a), and 112.3145(2)(c).
2. Others must file within 30 days of their appointment or employment and
annually thereafter, by July 1st, with the supervisor of elections of the county where they reside
(if they are not permanent residents of any county, they file where their agency is headquartered).
F.S. 112.3145(2)(c). State officers and specified State employees file with the Commission on
Ethics. If the form is not filed timely, a reminder notice advising of a grace period until September
1st is sent. Those who ignore the notice and grace period will face an "automatic" $25-per-day-
late fine, up to a maximum of $1,500, and may face additional penalties if an ethics complaint is
filed. F.S. 112.3145(7). Willful refusal to file after receiving a maximum automatic fine could
result in removal from public office or employment. F.S. 112.3145, as amended by Chapter 2014-
183, L.O.F.
3. The obligation to file accrues at the close of a calendar year in which the
officer or employee holds his or her office or employment. However, persons who leave their
office or employment must file Commission Form 1F within 60 days after leaving, unless another
reporting position is taken within the 60-day period. F.S. 112.3145(2)(b). The form must be filed
even if there is nothing to report. F.S. 112.3145(3). Filing of a Form 1F does not relieve the filer
of the obligation to file a Form 1, if the person was in their public position for the whole of the
year preceding the partial year necessitating the filing of a Form 1F.
C. What Must Be Disclosed (note that a disclosure option is now available; see D
below)?
1. The Form 1 disclosure is considered "limited" disclosure, because it
requires no disclosure of dollar amounts for income, assets, or liabilities. Disclosure thresholds
are relative, based on percentages or comparisons, rather than based on absolute dollar amounts.
2. The "disclosure period" covered by the form is the taxable year, whether
calendar or fiscal, immediately preceding the last day of the period during which the statement is
required to be filed. F.S. 112.312(10).
3. All sources of income in excess of 5% of the reporting person's gross
income received by the person in his or her name "or by any other person for his or her use or
benefit." Public salary need not be reported, although it should be included when calculating the
total amount of one's gross income; nor are sources belonging only to one's spouse or business
partner to be reported. F.S. 112.3145(3)(a); CEO 75-19.
4. Secondary sources of income (major clients or customers of businesses
owned by the reporting individual) must be disclosed. "Secondary sources" mean each source of
income exceeding 10% of the gross income of a business entity of which the reporting individual
owned more than a 5% interest and from which the reporting individual received more than 10%
of his or her gross income, and at least $1,500. F.S. 112.3145(3)(a)2.
5. The location or description of Florida real property, except for residences
and vacation homes, in which the reporting person owns directly or indirectly more than 5% of the

53
value of the property, must be disclosed. A street address should be used if a street address exists
for the property. "Indirect" ownership includes ownership of a beneficial interest in a trust owning
the property or in a corporation owning the property, but does not include ownership by a spouse
or minor child. F.S. 112.312(13) and 112.3145(3)(a)3; CEO 83-3; CEO 76-162.
6. Intangible personal property worth more than 10% of the reporting
individual's total assets must be reported. F.S. 112.3145(3)(a)3. Regarding reporting of funds or
investment products held in IRAs and regarding reporting of other intangible personal properties,
see CEO 11-11.
7. Any liability which equals more than the reporting individual's net worth
must be disclosed, except for credit card and retail installment accounts, taxes owed unless reduced
to a judgment, indebtedness on a life insurance policy owed to the company of issuance, contingent
liabilities, and accrued income taxes on net unrealized appreciation. F.S. 112.312(14) and
112.3145(3)(a)4. Valuation depends on the face amount of the debt and the basis for liability (e.g.,
joint or several). Liability on a promissory note only as a guarantor (CEO 86-40) or as a partner
(CEO 95-1) is contingent and not reportable. Liability as a co-maker of the note would be
reportable. CEO 89-5.
8. For valuation purposes, property held by husband and wife as tenancy by
the entirety should be valued at full value; other joint property should be based on the percentage
of ownership. CEO 82-30. Bank accounts where each joint tenant is authorized to withdraw the
full amount are valued at full value. CEO 82-30.
D. However, the following disclosure option is available under F.S. 112.3145(3)(b):
1. All sources of gross income in excess of $2,500.
2. All sources of income to a business entity in excess of 10 percent of the
gross income of a business entity in which the reporting person held a material interest and from
which he or she received gross income exceeding $5,000 during the disclosure period.
3. The location or description of real property in Florida, except for residences
and vacation homes, owned directly or indirectly by the reporting person, when such person owns
in excess of 5 percent of the value of such real property.
4. A general description of any intangible property worth in excess of $10,000.
Regarding reporting of funds or investment products held in IRAs and regarding reporting of other
intangible personal properties, see CEO 11-11.
5. Every liability in excess of $10,000.
E. As with Form 6, see above, Chapter 2013-36, L.O.F., provided for additional
collection methods (garnishment and wage withholding) for unpaid "automatic" fines, and
extended the collections actions statute of limitations to 20 years.

XXII. DISCLOSURE OF SPECIFIED BUSINESS INTERESTS

A. Persons required to file Form 6 or Form 1 who are or were during the disclosure
period an officer, director, partner, proprietor, or agent (other than a resident agent solely for
service of process), or who own or owned more than a 5% interest in one of certain types of
business entities, are required to disclose the fact as part of their Form 6 or Form 1 disclosures.
F.S. 112.3145(6).
B. The types of businesses for which this disclosure must be made include state and
federally chartered banks, state and federal savings and loan associations, cemetery companies,
54
insurance companies, mortgage companies, credit unions, small loan companies, alcoholic
beverage licensees, pari-mutuel wagering companies, utility companies, entities controlled by the
PSC, and entities granted a franchise to operate by either a city or a county government. F.S.
112.312(19).

XXIII. CLIENT DISCLOSURE (QUARTERLY)

A. Who Must File?
State officers, local officers (note addition of "privatized" chief administrative officers, F.S.
112.3136), specified state employees, and elected constitutional officers are required to report, on
a quarterly basis, the names of clients represented for a fee or commission before agencies at their
level of government, using Commission Form 2. F.S. 112.3145(5).
B. When Is the Form Due and Where Is It Filed?
The form should be filed only when a reportable representation is made during a calendar quarter,
no later than the last day of the quarter following the quarter in which the representation is made.
"Local officers" file with the supervisor of elections of the county in which the officer is principally
employed or is a resident. Elected constitutional officers, state officers, and specified state
employees file with the Commission on Ethics. F.S. 112.3145(5).
C. What Should Be Disclosed?
1. The names of clients and the names of the agencies before which the clients
were represented by the reporting individual or by any partner or associate of a professional firm
of which the reporting individual is a member, when the reporting individual has actual knowledge
of the representation. Depending on the substance of one's relationship to a law firm, one who is
"of counsel" to a law firm may not be a "member" of the firm. CEO 74-55, CEO 92-11.
2. Although the statute requires that reportable representations be at the
reporting individual's "level of government," Commission opinions have required only disclosure
of representations within the political subdivision served by a given local officer. CEO 80-63,
CEO 85-33.
3. Appearances in ministerial matters are not reportable. A "ministerial
matter" is one involving "action that a person takes in a prescribed manner in obedience to the
mandate of legal authority, without the exercise of the person's own judgment or discretion as to
the propriety of the action taken." F.S. 112.312(17).
4. "Representation" includes actual physical attendance on behalf of a client
in an agency proceeding, letters written or documents filed on behalf of the client, and personal
communications made with the officers or employees of the agency on behalf of the client. F.S.
112.312(22).
5. Contact with staff can be a reportable representation. CEO 79-7.
6. Under F.S. 112.3145(5), the following also do not have to be reported:
a. Appearances before any court;
b. Appearances before compensation claims judges;
c. Representations on behalf of one's agency in one's official capacity;
d. Preparing and filing forms and applications merely to obtain or
transfer a license based on a quota, a franchise of the agency, or a license or operation permit to
engage in a profession, business, or occupation, when the action does not require substantial
discretion, a variance, a special consideration, or a certificate of public convenience and necessity.

55
XXIV. AUTHORITY TO ADOPT MORE STRINGENT STANDARDS
Agencies, by rule, and political subdivisions, by ordinance, may adopt "additional or more
stringent standards of conduct and disclosure requirements," provided that they do not otherwise
conflict with the provisions of the Code of Ethics. F.S. 112.326. Counties may specify fines and
jail time by ordinance. F.S. 125.69(1).

XXV. ETHICS COMMISSION PROCESSES AND PROCEDURES

A. Commission on Ethics created in F.S. 112.320 to serve:
1. As the guardian of the standards of conduct provided in the Code of Ethics
for Public Officers and Employees (Part III, Ch. 112, F.S.); and
2. As the independent commission provided for in Art. II, Sec. 8(f), Fla.
Const., to "conduct investigations and make public reports on all complaints concerning breach of
public trust by public officers or employees not within the jurisdiction of the judicial qualifications
commission."
B. The Commission does so, primarily, in two ways:
1. By rendering binding, judicially-reviewable advisory opinions [F.S.
112.322(3); relevant rules are in Ch. 34-6, Florida Administrative Code]; and
2. By investigating complaints [F.S. 112.324; relevant rules are in Ch. 34-5,
Florida Administrative Code]
C. Advisory Opinions:
1. Standing is limited to:
a. the person who is in doubt about the applicability of the law to
himself or herself, "in a particular context" (not hypothetical); or
b. a public officer or employee having the power to hire or terminate
an employee has standing to request an opinion about how the law applies to that applicant or
employee
2. Opinion Procedure:
a. Written request initiates the proceeding
b. Commission staff prepares a draft opinion which is sent to the
Commission and to the requestor prior to the meeting at which it will be considered
c. Requestor can respond in writing, appear at the meeting and be
heard; rendered opinions are numbered, dated and published at Commission's website
(www.ethics.state.fl.us)
d. Are analogous to declaratory statements under APA (F.S. 120.565),
as they are based on the facts provided by the requestor, rather than on adjudicated facts, and are
reviewable by appeal to a District Court of Appeal (F.S. 112.3241)
D. Complaints:
1. Must be made under oath on the form prescribed by the Commission (CE
Form 50); a copy must be sent by the Commission to the respondent (accused violator) within 5
days [F.S. 112.324(1)]. Note that the Code of Ethics (Part III, Chapter 112, Florida Statutes) does
not expressly require anyone to file an ethics complaint; but note, also, that there may be other
statutes or bases requiring a filing [for example, F.S. 1001.64(3), which authorizes community
college boards of trustees to ask for investigations of actions by the college's president, and which
requires referral of inspector-general-identified potential violations to the Commission on Ethics,
FDLE, the Attorney General, or other appropriate authority].

56
 2. Are confidential, unless confidentiality is waived in writing, up to the point
where either the complaint is dismissed by the Commission or the Commission finds "probable
cause" [F.S. 112.324(2)]
3. First stage: facial review for legal sufficiency of complaint. If Commission
finds complaint to be insufficient to indicate a possible violation of the ethics laws, complaint is
dismissed without investigation, but with order explaining reasoning. [Rule 34-5, F.A.C.]
4. Second stage: preliminary investigation to determine "probable cause."
Commission or Executive Director orders investigation of complaint; investigator prepares written
report, which is provided to the respondent, who is given time to reply. Commission "Advocate"
(prosecutor) prepares written probable cause recommendation, which also is provided to the
respondent, who can provide a written reply. "Probable cause" hearing before the Commission
allows oral argument by the respondent and Advocate (no evidence taken) and allows the
complainant to observe. If probable cause is found, Commission can order hearing or allow
respondent 14 days to request a public hearing. [F.S. 112.324(3); Rule 34-5]
5. Third stage: determination of whether there was a violation. Either
stipulated settlement agreement negotiated between respondent and Advocate or hearing before
Division of Administrative Hearings' Administrative Law Judge. ALJ's recommended order
reviewed by Commission pursuant to F.S. 120.569 and 120.57. Clear and convincing evidence
standard applies to complaint proceedings. Latham v. Fla. Comm. on Ethics, 694 So. 2d 83 (Fla.
1st DCA 1997). Penalties provided for in F.S. 112.317 are imposed by disciplinary officials
(typically the Governor), not by the Commission, which can only recommend penalties.
Commission's final order is subject to appeal to District Court of Appeal under F.S. 112.3241 and
120.68. Orders are published on Commission's website per F.S. 120.53.
6. If a complaint is dismissed, the complainant does not have standing to
appeal the Commission's decision, not being considered to be a party to the complaint proceeding.
Mulgado v. Rodriguez, 933 So.2d 657 (Fla. 1st DCA 2006), and Mulgado v. Diaz, 933 So. 2d 658
(Fla. 1st DCA 2006).
7. In addition to being able to entertain a matter filed as an ethics complaint,
the Commission is authorized, via Chapter 2013-36, L.O.F., to proceed on referrals of possible
ethics violations, when the referral comes from the Governor, the Florida Department of Law
Enforcement, a State Attorney, or a United States Attorney.
8. Also, Chapter 2014-183, L.O.F., amended F.S. 112.3144 and F.S. 112.3145
to mandate that the Commission initiate an investigation, if a person fails to file financial disclosure
and accrues the maximum "automatic" fine of $1,500, for the purpose of determining whether the
failure to file was willful. If willful, the Commission must recommend that the official be removed
from public office or employment.
E. Composition of the Commission:
1. Nine members appointed for two-year terms
2. Five members appointed by the Governor, no more than three of whom are
from the same political party, one of whom must be a former city or county official
3. Two members are appointed by the President of the Senate, and two
members by the Speaker of the House of Representatives; neither the Speaker nor the President
may appoint more than one member from the same political party
4. No member may hold any public employment or be a "lobbyist" under State
law or local charter or ordinance; no member may serve more than two full terms in succession.
(F.S. 112.321(1))

57
 F. Other Responsibilities of the Commission:
1. Financial disclosure -- compile a list of persons required to file financial
disclosure, receive and maintain disclosure forms, and enforce the timely filing of forms by
collecting automatic fines imposed by statute for late filings ($25 per day; $1,500 maximum) and
by hearing appeals from the fines [F.S. 112.3144(5) and 112.3145(7)]
2. Administer and enforce the executive branch lobbyist registration and
reporting law, which requires that persons register to lobby executive branch agencies and
officials, and Con. Rev. Comm'ns, under certain circumstances (Legislative lobbyists are regulated
by the Legislature) [F.S. 112.3215]
3. Investigate complaints alleging a violation of F.S. 11.062(2), which requires
executive branch agencies, state universities, community colleges, and water management districts
to lobby the legislative and executive branch only by using full-time employees.
4. Investigate suspected violations of limitations on proper use of State motor
vehicles and State aircraft when reported by the CFO (F.S. 287.175)
5. Investigate complaints and render opinions concerning the ethics standards
applicable to members and staff of the Public Service Commission, and to members of the Public
Service Commission Nominating Council. F.S. 350.031 - .043; 350.042(7); 350.0605 (former
members).
G. Representing Agency Personnel in Complaints before the Ethics Commission
1. Consider Whether a Conflict of Interest May Prohibit the Representation
a. When an ethics complaint has been filed against an agency officer
or employee, the Commission has advised that the Code of Ethics does not prohibit an agency
attorney from representing the officer or employee. See CEO 76-144 and CEO 86-57.
b. However, in at least some instances the Bar has concluded that
professional ethics considerations would prohibit the agency attorney from representing the officer
or employee before the Commission. See Professional Ethics of the Florida Bar Opinion 77-30,
May 9, 1978 (county attorney may not represent individual county commissioner before Ethics
Commission in matter involving misuse of public office).
c. This opinion was reconsidered by the Board of Governors on Sept.
29, 2006, to clarify its views on conflicts involving a county attorney's representation of a county
commissioner who is the subject of an ethics complaint. The reconsidered opinion concludes that
there may be a conflict of interest under Rule 4-1.7, and that whether the conflict may be waived
depends on the individual circumstances of the matter. In order to waive the conflict, both the
commissioner and the county must give informed consent in writing, with the county's consent
being given by someone other than the commissioner.
2. Consider the Extent to Which the Attorney Client Privilege May Apply
a. In Re Bruce R. Lindsey, 158 F.3d 1263 (D.C. Cir. 1998):
Government attorney-client privilege did not protect from disclosure advice which Deputy White
House counsel rendered on political, strategic, or policy issues in connection with lawsuit
involving the President in his personal capacity prior to expansion of Independent Counsel's
jurisdiction to investigate whether wrongdoing occurred in connection with that action.
Deputy White House Counsel could not assert government attorney-client privilege to avoid
responding to grand jury if he possessed information relating to possible criminal violations.
Deputy White House Counsel could not withhold from grand jury information about possible
criminal misconduct that he obtained in conferring with the President and the President's private
counsel on matters of overlapping concern to the President personally and in his official capacity.

58
 b. In Re A Witness Before the Special Grand Jury 2000-2, 288 F.3d
289 (7th Cir. 2002):
Attorney-client privilege did not apply to bar grand jury testimony of state government counsel as
to communications with officeholder; any privilege ran to the office and not to the employees in
that office, and lack of criminal liability for government agencies and duty of public lawyers to
uphold the law outweighed any need for a privilege, in context of a federal criminal investigation.
c. Attorney General Opinion 97-61:
Discussions regarding school business between individual school board members and the school
board attorney are not attorney-client conversations and, therefore, are not privileged
communications.
A school board attorney may memorialize, in writing, any conversations
with an individual school board member or the superintendent. These documents are public
records subject to inspection and copying.
d. Attorney General Opinion 98-59:
Those records in the files of the city attorney which were made or received
in carrying out her duties as city attorney and which communicate, perpetuate, or formalize
knowledge constitute public records and are required to be turned over to her successor.
H. Attorney's Fees for Defense Against Ethics Complaint
1. Paid by the Official's Public Agency
a. An official's successful defense of misconduct charges brought in
proceedings before the Ethics Commission qualifies under the common law for reimbursement by
the official's agency of attorney's fees expended in that defense. (There is no statutory obligation.)
Thornber v. City of Fort Walton Beach, 568 So. 2d 914, fn. 7 at p. 918 (Fla. 1990).
b. However, fees may not be awarded when the complaint arises out of
a vote by the public official that directly advances the official's private pecuniary interests. Chavez
v. City of Tampa, 560 So.2d 1214 (Fla. 2d DCA 1990).
c. Maloy v. Bd. of County Commissioners of Leon County, 946 So.2d
1260 (Fla. 1st DCA 2007), rev. den. 962 So. 2d 337 (Fla. 2007): Court affirmed Leon County's
refusal to pay Commissioner's attorney fees for successfully defending against ethics complaint
which arose out of his consensual affairs with two women, concluding that the ethics proceeding
"did not arise out of and in the course of Maloy's employment with the Board while he served a
public purpose."
2. Paid by the Complainant
a. A complainant who has filed an ethics complaint with malicious
intent to injure the reputation of the official by filing with the knowledge that the complaint
contains one or more false allegations, or with reckless disregard for whether the complaint
contains false allegations, of fact material to a violation of the Code of Ethics is liable for costs
and reasonable attorney's fees incurred in defending the official. (F.S. 112.317(7); Commission
Rule 34-5.0291, F.A.C.)
b. Regardless of whether the official was represented by agency
counsel and the official did not incur any out-of-pocket expenses, a complainant who has filed a
frivolous ethics complaint with malicious intent to injure the reputation of the official is liable for
reasonable costs and attorneys fees incurred in defending the official. Couch v. Commission on
Ethics, 617 So. 2d 1119 (Fla. 5th DCA 1993).

59
 c. The amount to be awarded includes fees and expenses incurred in
proving entitlement to attorney's fees. Kaminsky v. Lieberman, 675 So.2d 261 (Fla. 4th DCA
1996).
d. For purposes of considering a fees award, the "complaint" filed by
the complainant may include statements made by the complainant's attorney to the Commission
investigator during the investigation. Osborne v. Commission on Ethics, 951 So.2d 25 (Fla. 5th
DCA 2007), rev. dismissed sub nom Milanick v. Osborne, 962 So.2d 337 (Fla. 2007).
e. "[T]he elements of a claim by a public official for costs and attorney
fees are that (1) the complaint was made with a malicious intent to injure the official's reputation;
(2) the person filing the complaint knew that the statements made about the official were false or
made the statements about the official with reckless disregard for the truth; and (3) the statements
were material." This is not the "actual malice" standard of NY Times v. Sullivan. Brown v. State
Commission on Ethics, et al., 969 So.2d 553 (Fla. 1st DCA 2007), pet. for rev. den. sub nom
Burgess v. Brown, 980 So.2d 1070 (Fla. 2008). "Material" means material to a violation of the
Code of Ethics; allegations not material, regardless of how inflammatory, disparaging, or
conclusory they may be, will not support a request for costs and fees. Hadeed v. Commission on
Ethics, 208 So. 3d 782 (Fla. 1st DCA 2016).
f. The procedure for requesting an award of attorney's fees is set out
in Commission Rule 34-5.0291, F.A.C., and contemplates the filing of a petition within 30 days
of dismissal of the underlying complaint, review of the petition by Commission staff, possible
dismissal after an informal hearing, and award of fees only after a formal hearing by the Division
of Administrative Hearings.

60
Excuse Me, Would You Mind Talking to me
About the Guy in the Next Cubicle? –
Internal Investigations 101
Present by Brian Koji
Allen Norton & Blue, P.A.
324 S. Hyde Park Ave. Suite 225
Tampa FL 33606
(813)317-4130
[email protected]
Initial Considerations
◆Purposes and goal of the investigation
◆Why are you doing this?
◆There are many different reasons
◆Uncover workplace misconduct
◆Reduce impulsive, overreaching oar arbitrary employment decisions
◆Maintain employee morale
◆Reduce or minimize adverse publicity
Is an investigation necessary?
◆Consider the information you have already obtained?
◆Is the conduct being complained of, even if true, a violation of
workplace policies?
◆Can the matter be satisfactorily handled without an investigation?
◆Has this alleged misconduct been investigated in the past?
◆Employers have flexibility in determining whether they need
investigations on a case by case basis
Conducting an Investigation
◆Before initiating an investigation make the proper preparations
◆Compile relevant documents including policies, rules, personnel files, witness,
statements, union contracts, complaints, emails, etc.
◆Select the investigator
◆Employers can specify investigators in policies or remain flexible on case-by-case
basis
◆Should be non-biased and uninvolved in the alleged misconduct
◆Should have an understanding of the employer’s rules and procedures
◆Should be knowledgeable and effective as a potential witness at trial
◆Should have the appropriate credentials to be conducting the investigation
During the investigation
◆Begin with the end in mind – what are the goals of your investigation
◆Plan for how the investigation will be conducted
◆What documents will you need during the investigation
◆What witnesses will you have to interview
◆ Provide them advance notice
◆ Employees do not have a 5th amendment right not to participate in an employment
investigation
◆ What will you do with an employee who refuses to cooperate?
◆Create a timeline for the investigation
Interviewing Witnesses
◆Who should you interview?
◆The complainant
◆The alleged victim
◆Potential bystander witnesses
◆The employee accused of conduct
◆Generally any employee the accused identifies as a potential witness should also
be interviewed
◆Investigators should maintain confidentiality to the extent they can while
still conducting a thorough investigation, but should not promise
confidentiality to witnesses
Interviewing Witnesses
◆How to conduct interviews
◆Prepare beforehand with relevant documentation
◆Make an outline for the interview
◆Avoid group interviews
◆Start with open-ended questions
◆Seek clarification during interviews
◆Do not lie to or threaten interviewees
◆Don’t share your thoughts or opinions with the interviewees
Handling Hostile Witnesses
◆In most cases, employees can be required to answer reasonable questions
in an interview
◆If any employee refuses to cooperate, he should be informed of the
potential employment consequences
◆Allow witnesses to consult with their representation if they have any
◆Document the witness’s hostility
◆Don’t threaten or intimidate the witness
Witness Representation
◆In unionized contexts, employees have a right to representation during
interviews if they request
◆Certified firefighters have a right to representation when they are
undergoing a formal investigation
◆Sworn law enforcement and correctional officers have a right to
representation during an investigation
◆Non-unionized general employees do not have a right to representation
(though you may want to permit it for strategic considerations)
◆Representation cannot interrupt or impede the investigation
Interview Documentation
◆Obtain signed statements from witnesses if the witness will not be
available in the future
◆Signed statements can help in the future if the witness turns hostile
◆Documentation for interviews should have restricted access
◆Consider updates to the investigation plan as needed
Preparing the Investigation Report
◆Compile all documents and witness interviews
◆Identify any conflicts between testimony and evidence
◆Identify precedent for this type of conduct
◆Identify any misconduct that has occurred
Investigation Findings
◆Did the misconduct occur, not occur or inconclusive?
◆Even if misconduct did not occur you may still take action to avoid potential
misconduct in the future

◆Is there disciplinary action moving forward?

◆Does the employee have a property right in their continued employment?
◆ If so, what due process rights must they be afforded?
Discipline
◆Consider the “Seven Factors for Just Cause”
◆Is the rule reasonable?
◆Did the employee have reasonable notice of the rule?
◆Was the investigation sufficient?
◆Was the investigation fair?
◆Can you prove the violation?
◆Was the employee given equal treatment as compared with other employees who
committed similar violation?
◆Was the discipline appropriate for the violation?
Excuse Me, Would You Mind Talking to me
About the Guy in the Next Cubicle? –
Internal Investigations 101

Presented by
Brian Koji

Allen, Norton & Blue, P.A.

324 S. Hyde Park Avenue, Suite 225
Tampa, Florida 33606
Ph: (813) 251-1210
Fax: (813) 253-2006
[email protected]

1
 Initial Considerations

A properly conducted internal investigation is critical to avoiding lawsuits and liability.

Every act and document associated with an internal investigation may be subject to careful scrutiny
and attacked in a subsequent lawsuit or governmental review. Time and attention spent on a
handling a complaint or a report of workplace misconduct will likely obtain significant benefits
and protection from future problems.

Purpose and Goals of an Investigation

The essential purpose of an internal investigation is to maintain a professional work

environment. To maintain a professional work environment, employers must preempt, identify,
investigate, and appropriately resolve incidents and allegations of employee misconduct.

At its base, the goal of an investigation is to determine the facts and to flesh out
considerations required to make employment decisions or to take action. The specific goals and
benefits of each investigation varies with circumstances, but often include:

• Uncovering workplace misconduct and identifying employee(s) who engaged in

misconduct.

• Determining workplace policies, rules, and procedures that were violated.

• Gathering evidence to substantiate and defend employment decisions.

• Reducing the likelihood of impulsive, arbitrary, or overreaching employment

decisions.

• Provides an opportunity to fully hear the accused and any other individuals
involved.

• Provides a chance to consider mitigating factors; and the ability to consider several
alternatives.

• An investigation before taking disciplinary action sends a message to employees

that the employer is acting in good faith and intends to be fair

• Preempting or preparing for governmental oversight, review, or interference.

• Preventing or minimizing adverse publicity.

• Eliminating or minimizing potential legal liability and legal costs.

• Maintaining employee morale and a harmonious working environment.

• Improving services to the public and other constituencies.

2
Determining whether to conduct an investigation

The first decision to be made is whether to conduct an investigation at all. Employers would
be wise to keep in mind that, even when an investigation is not legally required, it will often be a
best practice to conduct one. In determining whether to conduct an investigation, critical inquiries
include:

• Is it necessary in light of information already known or obtained? Does the

decisionmaker already have all of the relevant personal knowledge?

• Is the complained of conduct a violation of policy?

• Can the matter be handled satisfactorily in an alternative manner?

• Considerations of precedent, publicity, even-handed treatment and the like should

be considered.

Generally, employers should not avoid investigations or require overly-technical

prerequisites (such as requiring a complaint be in writing, for example) before considering whether
to launch an investigation. Employers should accept complaints from any source, internally or
externally. Likewise, the fact that a complaint is anonymous is of little relevance and should not,
by itself, foreclose an investigation.

Employers should also be flexible in determining whether to conduct an investigation. If

an initial decision to handle the issue informally, without an investigation, fails to satisfactorily
solve the issue or if new information arises, employers should re-visit its decision and, if warranted,
launch an investigation. Additionally, employers should also beware of the “tip of the iceberg”
complaint, whereby a seemingly minor allegation may, if investigated properly, lead to a larger
issue needing resolution.

Conducting the Investigation

Preparation

At the outset it is critical to identify the focus of the investigation with specificity,
preferably in a memorandum to the investigatory file. Other issues or concerns often present
themselves during the course of an investigation and in such circumstances a new and different
investigation may be initiated or an amendment to the file memorandum should be created.

Before initiating interviews, it is helpful to assemble the documents relevant to the issue
under investigation. These documents often include:

1. Policies, Rules, Charter, Ordinances

2. Personnel Files

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 3. Complaint Statement

4. Union contracts

5. Witness notes, diaries, calendars

6. Any prior related investigation

7. Emails, voicemails, text messages, social media

8. Photographs

Selecting the Investigator

The identity of the investigator will often vary depending on the nature of the allegation,
the expertise needed, and the decision to be made. While there should be a single individual with
ultimate responsibility for orchestrating the investigation, there is nothing improper about using
an investigative team if circumstances dictate. In selecting the investigator, an employer may
consider Human Resources, legal counsel, outside counsel, Department Head or other manager,
consultants, etc.

Factor to consider when selecting an investigator should include:

• Responsibilities in relation to work area, employee(s), etc.

• Expertise needed.

• Ability to understand/identify purpose of the investigation.

• Knowledge of the employer’s policies and procedures.

• Interviewing skills.
• Unbiased and uninvolved.
• Credibility, impartiality and ability to maintain confidences.
• Effectiveness as a potential witness. Defensible credentials.

• Organization skills (ability to take accurate notes).

Advantages and disadvantages of using certain specified personnel include:

 Supervisors within the relevant Department.

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 Advantages: familiarity with employees involved, policies and background;
and often can do the investigation quicker.
Disadvantages: familiarity with employees involved; interferes with other
job responsibilities; may not be as versed to interpreting policy, contracts or
laws.
 Human Resources.
Advantages: familiarity with policies, contracts and laws as interpreted and
applied throughout the County; familiar with conducting investigations;
emotionally removed from the facts.
Disadvantages: not as familiar with the employees involved and may want
to maintain impartiality in case of disciplinary proceedings and appeals.
 Outside Counsel.
Advantages: Familiarity with laws; familiarity with conducting
investigations; some information may be protected by attorney-client
privilege; is not responsible for imposing any disciplinary action based upon
results of an investigation;
Disadvantages: Not as familiar with employees, policies and practices of
County as compared to Department managers or Human Resources staff.

Plan the Investigation Beforehand, But Be Flexible to Adapt to Developments

• What is the goal of the investigation?

• Determine and review potential policy, law, contract provisions that may be
relevant.

• Decide which documents need to be requested or reviewed.

• Decide which witnesses need to be interviewed.

 Can the witnesses be compelled? If they are employees, the answer is yes.
If they are not employees, the answer is generally no, so with non-employee
witnesses you need voluntary cooperation. Employees do not have a 5th
Amendment right to remain silent in an employment investigation
(though they do have such a right in a criminal investigation). To compel
an employee to make a statement, a “Garrity” notice should be given. A
sample Notice is included at the end of this outline. In essence, the Garrity
notice advises the witness that he or she is required to cooperate and answer
questions but that the information provided cannot be used in a criminal

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 matter. If an employee, after being given such notice, refuses to cooperate
or answer questions, he or she may be disciplined or discharged for
insubordination.

• Prepare and provide notice of the investigation to the accused.

• Advise and coordinate with management and Human Resources and, if

necessary, legal counsel prior to beginning the investigation if possible.

• Prepare a chronology.

Investigatory Interviews

Who should be interviewed?

• The complaining party, if one exists.

• Victim of the alleged misconduct.

• Any identified or potential witnesses and bystanders.

• Any employee against whom the complaint is directed.

• Any other person who may possess any potentially useful information. Err on
the side of overinclusion when determining who should be interviewed.
Witnesses include those that may have incriminating as well as exculpatory
evidence (i.e. evidence clearing the allegation).

How to Conduct the Interview

• Preparation is paramount. Review documents and outline topics to be covered

beforehand.

• Make an interview outline. The outline should identify all specific questions or
issues that need to be addressed, as well as specific evidentiary matters that may
need confirmation or verification. Update outline as needed.

• Advise all witnesses at the outset that they are required to fully and truthfully
cooperate with the investigation and that discipline up to termination of
employment will result if they fail to do so.

• Advise employees that they will not be subject to retaliation for participating in
the investigation.

• Advise the employee that he or she is expected to fully and truthfully answer
all questions.

• Avoid group interviews.

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 • Remain neutral and objective and do not conduct a “results-oriented” interview.

• Ask open-ended questions initially, but don’t be afraid to ask pointed, direct
questions.
 Generally, avoid asking loaded, leading, or accusatory questions. 1 Such
questions may serve to put the witness on the defensive or result in the
substitution of your own opinions for those of the witness.
 Avoid beginning the interview with questions that are answered merely by
a simple ‘yes’ or ‘no.’ 2 Remember one goal of the interview is to try to get
the witness to open up and voluntarily share additional information. Open
ended sentences should be used to facilitate communication. 3

• Questions should be focused and, where appropriate, you may want to have the
witnesses describe more slowly the sequence of events and details.

• Avoid compound questions that combine two or three issues. 4 Answering such
questions may prove difficult for the witness and result in inaccurate statements.
Additionally, these questions tend to lead to ambiguous answers that may be
hard to construe.

• Where the answers are ambiguous, seek clarification during the interview.

• Where the answers appear conflicting, point it out and seek an explanation.

• Do not mislead or lie to the interviewee.

• Use documents (always have sufficient copies) if necessary and show the
interviewee documents if it will assist with the questioning.

• Gather all the information you believe to be pertinent. The goal of the interview
is to gain as much relevant information as possible.
 Get specifics and details.
 Who, What, When, Where, How, Why, Who witnessed it?

1
Such as: “Are you a tough manager?” or “Why did you steal the money from the register?”
2
These questions may, however, be useful at the end of the interview to help pin down a specific
position or fact. Also, accusatory statements may be appropriate to encourage the witness to
volunteer information.
3
Such as: “Tell me about…”
4
Such as: “What time did you come to work and what did you do when you first came in the
door?”

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  Exactly what occurred?
 When did it happen?
 Where did it happen?
 Who was present?
 Who else may know relevant information?
 How did it happen?
 Who did or said what? In what order?
 Why did it happen? Could it have been avoided?
 Are there notes, documents, phone messages, or other evidence?

 Ask for pertinent documents.

• Where it isn’t apparent, ask the witness what is the source of his or her
knowledge (personal knowledge/eye witness, hearsay, rumor mill, other direct
knowledge).

• Always allow the interviewee to add anything he or she would “like to add” at
the end.

• Do not threaten the interviewee or make any promises that cannot be kept.

• Refrain from disclosing your thoughts, opinions or conclusions to the

interviewee during the interview.

• Maintain a relaxed demeanor and put the witness at ease to the extent possible.

• Take complete and accurate notes. Notes should include the names of the
person conducting the interview, person(s) being interviewed, and any other
persons present at the interview. Notes should also include the time, date and
location of the interview. Consider using a court reporter.
Confidentiality

In conducting an investigation, the investigator should maintain confidentiality while

preserving a complete and accurate record. That said, investigators should not make promises of
confidentiality to the complainant, victim, accused, or other witnesses, as strict confidentiality is
often not possible or conducive to a full and accurate investigation. Information obtained should
be kept as confidential as possible while also permitting a full and accurate investigation and
subsequent employment decisions/actions.

Handling a hostile witness

• Insist that the employee answer the question. In most instances, an employee
can be required to answer legitimate questions.

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 • Advise the witness that his or her refusal to fully and truthfully cooperate in the
investigation is grounds for disciplinary action up to termination of
employment. Then ask the employee the question again.

• Use short periods of silence where necessary and effective.

• You should permit the witness to consult with his or her representative if he or
she desires. If he or she continues to refuse to cooperate, ask them to explain
why, in detail, and document it.

• Document the witness’ hostility, attitude and demeanor during the interview if
it is pertinent to the investigation or any conclusions.

• Do not threaten, coerce, or intimidate the witness, if the witness is non-

cooperative or discontinues the interview prior to its completion (simply
document the same).

• Never promise a benefit or threaten discipline to obtain witness information.

Does the employee have a right to representation?

• In a unionized context, employees have a right to representation, on request,

during an interview which the employee reasonably believes may lead to
disciplinary action. This right to representation is often referred to as a
Weingarten right.

• Certified firefighters have a right to representation when subject to a formal

investigation under the statutory Firefighters’ Bill of Rights. § 112.82 et seq,
Fla. Stat.

• Sworn law enforcement and correctional officers have a right to representation

during an investigation under the statutory Law Enforcement Officers’ Bill of
Rights. § 112.532 et seq., Fla. Stat.

• Non-unionized general employees do not have a legal right to representation in

an internal investigation. However, employers should consider allowing a non-
obstructionist representative during an interview, as a means of bolstering the
credibility of the investigation and precluding after-the-fact attacks by the
employee or the employee’s counsel in any resulting legal challenges.

• The witness’s representative cannot impede the investigation or interview.

They can also not insist that they answer the questions instead of the employee.
That said, if they would like to add any information at the end of the interview,
it should be permitted.

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Signed Statements.

• Witness signed statements may be used if witness will not be available in

the future.
• Signed statements may be used to contradict witnesses that become
hostile or adverse, or to refresh the recollection of a witness who may no
longer recall specific information related to their statement.
• A witness should have an opportunity to read and correct their statement
before the witness and the interviewer sign and date the statement.
• The witness should receive a copy of his/her own statement.

Establish separate and secure investigation files and records.

• Files (paper or electronic) should only be accessible by person(s)

conducting investigation.
• Documentation and evidence related to the investigation, even if deemed
irrelevant, should not be destroyed (i.e. papers, equipment, pictures, voice
mail transcripts, e-mails, etc.)

Periodically review, synthesize and update investigation plan.

• Identify possible leads and additional witnesses.

• Evaluate any possible shortcomings or oversights in existing plan.
• Review timing issues, i.e. possible future absence of witnesses or
opportunity for loss of evidence.
• Determine whether investigation may have uncovered other additional
misconduct that may require investigation.

Findings, Conclusions, and Report Preparation.

Pre-Report Preparation.

1. Compile and analyze documents, evidence, interviews, etc.

2. “Good faith” effort.

3. Identify conflicts that exist between facts and testimony.

4. Identify conclusions (tentatively) that may be made.

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 5. Identify how similar conduct has been dealt with by employer (in this
employee group; on campus overall).

6. Identify if there is misconduct and what action would you recommend.

Findings and Conclusions Overview.

Misconduct occurred.

The employer may determine that the employee engaged in misconduct and
that the employee should be subject to disciplinary or corrective action.

The employer may conclude that although the employee may have engaged
in misconduct, the nature or severity of the misconduct did not warrant
disciplinary action. In this instance, prepare a file report and provide a copy
to the employee.

Misconduct did not occur.

Regardless of whether the employer determines that an employee engaged

(or did not engage) in misconduct, a report detailing the conclusion should
be prepared based on the evidence.

Investigation is inconclusive as to whether misconduct occurred.

If the employer cannot determine whether misconduct occurred, a report

detailing that conclusion and the facts leading to it should be prepared.
Importantly, even where an allegation cannot be substantiated, the
employer should consider whether any other actions can be taken to
minimize liability and the likelihood of a reoccurrence (in the event the
misconduct did occur). For example, if a sexual harassment investigation
resulted in inconclusive findings, an employer could nonetheless require
mandatory remedial training on its anti-harassment policies even if
disciplinary action is not taken as a result of the inconclusive findings.

Imposing Disciplinary Action – Due Process for Employees Who Have a Property Interest
in Continued Employment
Employees who can only be disciplined for cause (or just cause or proper cause, etc.) under
employer policy, charter, ordinance, union contract, or applicable statutes, have a property interest
in their continued employment and, as such, due process is required prior to taking disciplinary
action.

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 In contrast, employees who are employed “at will” do not have a property interest and no
formal due process is necessary. However, employers should consider following due process
notions as a “best practice” that will bolster the credibility and defensibility of the employer’s
investigations and employment decisions.
Where due process is required, it generally requires that the employee be given a pre-
disciplinary notice advising him or her that the employer is considering disciplinary action against
him or her and specifying the charges upon which the consideration of discipline is based. The
employee must then be provided the opportunity to meet informally with the decisionmaker to
provide any information he or she want the decisionmaker to consider prior to a decision being
made on discipline. If discipline is imposed, the employee must be given the right to appeal the
discipline at a full evidentiary hearing (i.e. witnesses, documents, evidence presented to an
impartial hearing officer).
In imposing discipline, employers should consider the “Seven Factors of Just Cause,”
which are factors that many arbitrators use in reviewing the appropriateness of discipline. While
these factors are not legally binding, if a legal challenge is mounted to an employment decision,
there is a good chance that these factors, in one form or another, will make for important evidence
for either the employer (if the investigation and discipline was done right) or the employee-litigant
(if the investigation or discipline was not done right).
Seven Factors for Just Cause

1. Is the rule that was violated a reasonable rule?

a. Is the rule straightforward and easy to understand?

2. Did the employee have reasonable notice of the rule?

a. Did employees know about the rule? Were they updated to any changes to this
rule?

b. Can you prove the employees are aware of the rule?

c. Have you raised this issue in past performance evaluations?

d. Prior notice, while optimal, is not always necessary (for example, severe
misconduct like physical violence against coworkers or theft)

3. Was the investigation sufficient?

a. How did you first hear about the rule violation?

b. Are there witnesses to the misconduct? Did you speak with them?

c. Did you look at any other evidence available? Photos, videos, etc?

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 d. Was the investigation documented?

e. Did the accused have a right to refute the claims of others?

4. Was the investigation fair?

a. How long ago did the misconduct occur?

b. Did you talk to the witnesses for the accused?

c. Did an unbiased individual conduct the investigation?

d. How was conflicting evidence handled?

5. Can you prove the violation?

a. Does the evidence support the findings of the investigation?

6. Was the employee given equal treatment as compared with other employees
who committed similar violation?

a. Is this rule applied equally across the board?

b. Are all employees held accountable for violations of this rule?

c. Have there been any similarly situated employees who violated this rule?
What was their discipline?

7. Was the discipline appropriate for the violation?

a. Is the discipline proportional to the misconduct (i.e., does the

“punishment fit the crime”?)

b. Is this a pattern of misconduct? Is it consistent with the employee’s past

disciplinary record?

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 CHECKLIST FOR INVESTIGATION
1. Pre-Investigation
a. Formal or Informal
b. Administrative leave, transfer employee, other
c. Safety/Security precautions
d. Secure file, records, etc.

2. Investigation
a. Investigator
b. Strategy
c. Evidence
d. Witness(es)
e. Accused
f. Notes
g. Policies, Rules, Procedures, Union Contracts
h. Relevant Documents
i. Questions

3. Closing Investigation
a. Analyze results
b. Determine outcome
c. Prepare report(s)
d. Deliver Tentative Findings and Tentative Conclusions
e. Employee Respond
f. Deliver Final Findings
g. Implement discipline or corrective action

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 Sample Garrity Statement

ADVISEMENT OF RIGHTS

You are being questioned as part of an investigation being conducted by the County. These

questions are being asked solely for the purpose of determining employment issues. A refusal to

fully and truthfully answer all questions will be considered willful insubordination and is grounds

for immediate dismissal. You are advised that neither your statements nor any information or

evidence which is gained by reason of such statements can be used against you in any criminal

proceedings.

Acknowledgement of Receipt:

_
Signature Date

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