Law requiring counties to pay overhead costs for Offices of Criminal Conflict and Civil Regional Counsel declared unconstitutional.  [Added 9/26/11]

    The Florida Supreme Court affirmed the First DCA's decision that held section 19 of chapter 2007-62, Laws of Florida, violates article V, section 14 of the Florida Constitution.

    The law in question (the "Act") "created a new system of court-appointed counsel to represent indigent defendants, primarily in those cases where the public defender has a conflict of interest" and "established the Offices of Criminal Conflict and Civil Regional Counsel (the 'RCC'), which consist of five offices located within the geographic boundaries of each of the five district courts of appeal."  Section 19 of the Act amended Fla.Stat. sec. 29.008 to include RCC within the term "public defenders' offices."  The result was that counties, rather than the state, were required to pay certain overhead costs (e.g., communications services, information systems, facilities costs) of public defenders' offices – now defined to include RCC.  A number of Florida counties challenged the law, asserting that it was unconstitutional under both Fla.Constit. art. V, sec. 14 and art. VII, sec. 18(a).  The trial court ruled for the counties.  The First DCA affirmed.  Lewis v. Leon County, 15 So.3d 777 (Fla. 1st DCA 2009).

    On appeal, the Florida Supreme Court agreed with the lower courts that "the plain language of article V, section 14 provides that the state is responsible for funding the RCC, including the overhead costs outlined in subsection (c)."  Subsection (c) states that counties are responsible for the costs of enumerated overhead items incurred by "trial courts, public defenders' offices, state attorneys' offices, and the offices of the clerks of the circuit and county courts."  The RCC are "[n]oticeably missing" from this constitutional provision.  As a result, section 19 of the Act "violates the constitutional requirement that the state fund overhead costs of all judicial offices that are not expressly listed in article V, section 14(c)."

    (Note:  The Court found it unnecessary to address whether the law also violated Fla.Constit. art. VII, sec. 18(a).)  Lewis v. Leon County, 73 So.3d 151 (Fla. 2011).

Under Florida ethics laws no conflict exists when law firm in which county commissioner's son-in-law is non-equity shareholder represents clients before commission.  [Added 6/211]

    County Commissioner has a son-in-law who is about to become a non-equity shareholder in Law Firm.  Son-in-law will continue to be paid on a salaried basis.  The Firm represents clients on land planning matters that come before the County Commission.  The Firm's and Son-in-law's compensation will not vary depending on whether a particular project is approved by the Commission.  County Commissioner asked the Florida Commission on Ethics for an opinion regarding two questions.

"QUESTION 1:  Would a prohibited conflict of interest be created where a law firm, of which a County Commissioner's son-in-law is a non-equity shareholder, represents clients before the County Commission in land use matters and where the son-in-law occasionally handles the representation?  This question is answered in the negative."

    The Commission on Ethics considered 3 statutory provisions and concluded that none of them barred the proposed conduct.  Fla.Stat. sec. 112.313(3) (concerning doing business with a public official's own agency) did not apply because Law Firm's services are purchased by and provided to its clients, not the County.  Fla.Stat. sec. 112.313(4) (concerning unauthorized compensation for a public official and certain relatives) did not apply because the only relatives addressed in the statute are spouses and minor children of the public official.  Finally, Fla.Stat. sec. 112.3135 (the "anti-nepotism" law) did not apply because it is applicable only "to situations where the relative is being considered for appointment, employment, promotion, or advancement 'in or to a position in the agency' in which the official serves or over which the official exercises jurisdiction or control."  Son-in-law’s position is in the private law firm, not in a governmental agency.

"QUESTION 2:  Would a voting conflict of interest be created for the subject County Commissioner were the Commission to consider a land use matter in which the law firm of which her son-in-law is a shareholder represents the property owner?  Under the circumstances presented, this question is answered in the negative."

    The relevant statutory provision, Fla.Stat. sec. 112.3143, focuses on whether there would be a gain or loss to the official's relative, not the relative's client.  "As was the situation in CEO 07-5, here the Commissioner's son-in-law as a non-equity shareholder in the law firm would have no ownership interest in the firm, would not be an officer or director of the firm, would receive no direct bonus, compensation, or origination fee related to the firm's work before the County Commission, and would receive no direct compensation for fees received from the firm's work before the County Commission.  His compensation would continue to be based on the same factors as are applicable to the firm's associates.  Under these circumstances, we cannot conclude that the Commissioner's son-in-law would derive 'special private gain' from a land use measure in which the firm is representing the property owner before the County Commission."  Florida Commission on Ethics Opinion CEO 11-04.

Lawyer who is state representative may continue as expert witness for law firm representing Department of Financial Services.  [Added 4/13/11]

    Lawyer has served an an expert witness in the insurance field.  Over the past 5 years Lawyer has been engaged as an expert by law firms representing the Florida Department of Financial Services ("DFS") in various insurance insolvency matters.  Lawyer was elected to the Florida House of Representatives in 2010.  Prior to the election, Lawyer had been "engaged as an expert witness by a law firm whose underlying client was DFS in an insolvency litigation matter in court and [Lawyer] testified about a year ago as the insolvency expert.  [Lawyer is] retained by the law firm and paid by the firm, with the firm being reimbursed for that expense by the underlying client (here, DFS).  Currently a series of motions and various post-trial proceedings and hearings are under way, and the law firm has asked [Lawyer] to continue as their insurance expert and to be available to testify in these various post-trial matters."  Lawyer asked the Florida Commission on Ethics whether it would be permissible for Lawyer to "continue to testify and generally be available as an expert to consult with the law firm in this pending case."

    The Commission answered in the affirmative.  The opinion summary states:  "No prohibited conflict of interest would be created were a Member of the House of Representatives to continue to be engaged as an expert witness for a law firm that is representing the Department of Financial Services in an insurance insolvency litigation matter.  Neither the law firm nor the Member's LLC would be doing business with or subject to the regulation of the Legislature, and no continuing or frequently recurring conflict of interest would be created.  The Member would not be personally representing another person or entity for compensation before a state agency when negotiating with the law firm to extend the contract for expert witness services or when acting in the capacity as an expert witness in fulfillment of that contract and testifying in court, consulting with counsel, or communicating with other agents and employees of DFS."  Florida Commission on Ethics Opinion CEO 11-03.

Public officials do not become fact witnesses subject to deposition as a result of investigating a matter before them.  [Added 3/23/11]

    A matter involving enforcement of City tree protection ordinances was pending before the City's Tree Commission.  Respondent sought to depose 3 members of the Commission.  The discovery dispute ended up before a magistrate and, ultimately, the circuit court.  The circuit court entered an order permitting Respondent to take the depositions of the Commissioners.  The City petitioned the Third DCA for a writ of certiorari.

    The appellate court granted the petition and quashed the order.  The City contended that "the trial court departed from the essential requirements of law when it determined that the subject Tree Commissioners became fact witnesses subject to discovery depositions as a result of site visits."  The Third DCA agreed that the lower court's "determination is in conflict with section 286.0115(1)(c)(3), Florida Statutes (2010), which provides that '[l]ocal public officials may conduct investigations and site visits and may receive expert opinions regarding quasi-judicial action pending before them' and '[s]uch activities shall not be presumed prejudicial to the action if the existence of the investigation, site visit, or expert opinion is made a part of the record before final action on the matter.'”  City of Key West v. Havlicek, 57 So.3d 900 (Fla. 3d DCA 2011).

Administrative order ruling that state senator violated ethics laws reversed by Fifth DCA.  [Added 3/2/11]

    A state senator with complimentary tickets to a football game allegedly used his position "to bully a deputy sheriff into permitting him access to a stadium parking lot through a barricaded roadway."  Senator was cited for failure to obey traffic laws and, after an unsuccessful appeal, paid the fine.  He was then charged by the Florida Commission on Ethics with violating Fla.Stat. sec. 112.313(6) (2006), which provided in pertinent part:  "No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others."  An administrative law judge heard the matter and concluded that Senator had violated the statute.  Senator appealed.

    The Fifth DCA, while stating that it was not approving Senator's conduct, reversed.  The statute requires not just that an official misuse his or her position but that the official do so "corruptly."  The Commission failed to prove this element of the statute.  "Substantial competent evidence does not support the administrative law judge’s factual findings, which were adopted by the Commission, concluding that Siplin acted 'corruptly.'  As the administrative law judge found, [Senator] disobeyed the law and the deputies’ instructions, was ticketed for his disobedience, and ultimately, paid the ticket for his willful refusal to obey the traffic laws and instructions.  No allegation has been made that [Senator] used his position in an attempt to avoid receiving or paying the traffic citation.  Instead, the ethics violation is based on his allegedly using his position to bully Deputy Robinson into letting him access the parking lot through a barricaded route.  The Commission points to no law or ethics code that prohibited [Senator] from asking to go through the barrier.  In fact, [Senator] was ultimately allowed to go through the barricade not because he was 'corruptly' using his official position as a state senator but because he was creating a scene by refusing to move his vehicle as instructed by law enforcement."  Siplin v. Commission on Ethics, 59 So.3d 150 (Fla. 5th DCA 2011).

Florida Commission on Ethics opines on lawyer's service on city economic development commission and his firm's representation of clients who deal with commission.  [Added 1/3/11]

    A lawyer who practices in a law firm was considered for possible appointment to a Florida city's economic development commission.  Several questions were presented to the Florida Commission on Ethics regarding the law firm's representation of clients who may have dealings with the commission.  The Ethics Commission responded with an opinion answering 4 questions:  (1) "Would a prohibited conflict of interest be created were a client of a law firm of a member of a city's economic development commission to apply to the commission for or receive from the commission a waiver of part of the client's property taxes or other similar economic incentive?"; (2) "Is the [economic development commission] an 'advisory board' such that a conflict, if any were present, under Section 112.313(7)(a), Florida Statutes, is susceptible to waiver under Section 112.313(12), Florida Statutes?"; (3) "Would a prohibited conflict be created were a client of the member's law firm to apply to a subordinate board of the [commission] for a permit?"; and (4) "Would a prohibited conflict be created were a client of the member's firm to apply to the [Downtown Development Review Board] for a zoning waiver or variance?"

    The published headnote summarizes the opinion's conclusions this way:  "A person who is an attorney in a law firm would not have a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, were he to become a member of a city's economic development commission, provided that his firm does not work on a client's application for an incentive from the commission; a prohibited conflict under Section 112.313(7)(a) would not be created were a client of the firm to apply to a subordinate board of the commission for a permit, provided a denial of the application by the subordinate board is not appealed to the commission and provided that the firm does not work on the permit application to the subordinate board; and a prohibited conflict would not be created were a client to apply to the subordinate board for a zoning waiver or variance, provided the firm does not work on the waiver/variance matter for the client. In addition, we find that the commission is not an "advisory board" for purposes of Section 112.313(12), Florida Statutes.  Also, the member must comply with Section 112.3143, Florida Statutes (the voting conflicts law), regarding votes/measures/matters of the commission concerning himself, his firm, his firm's clients, and certain others, whether or not his firm works on the matter for the client.  CEO 74-8, CEO 77-178, CEO 79-82, CEO 80-79, CEO 86-13, CEO 86-24, CEO 96-1, CEO 03-7, CEO 04-6, CEO 06-24, CEO 07-11, CEO 08-1, CEO 08-11, and CEO 10-20 are referenced, and CEO 87-60, CEO 89-29, and CEO 07-13 are distinguished."  Florida Commission on Ethics Opinion CEO 10-24.

Confidentiality requirements in Law Enforcement Officers' Bill of Rights apply whenever officer faces adverse job action.  [Added 11/27/10]  --  Fraternal Order of Police v. Rutherford, 51 So.3d 485 (Fla. 1st DCA 2010).

Retired public employee's benefits may be forfeited for crimes occurring while employed, even though not convicted until after retirement.  [Added 11/21/10]  --  Garay v. Dept. of Management Services, 46 So.3d 1227 (Fla. 1st DCA 2010).

Florida Commission on Ethics publishes opinion addressing ethics law restrictions on Attorney General who leaves office.  [Added 11/16/10]  --  Florida Commission on Ethics Opinion CEO 10-22.

Passenger Rail Commission member who is in law firm has no conflict of interest if law firm represents clients seeking to do business with FDOT.  [Added 9/30/10]  --  Florida Commission on Ethics Opinion CEO 10-20.

Under state ethics laws, former assistant state attorney may represent clients against state attorney's office.  [Added 6/8/10]  --  Florida Commission on Ethics Opinion CEO 10-14.

Commission on Ethics discusses how 2 year post-public-employment representation restriction applies to former SES senior attorney of Agency for Workforce Innovation.  [Added 6/8/10]  --  Florida Commission on Ethics CEO 10-13.

Former government official's conviction of conspiracy to commit mail fraud supports forfeiture of retirement benefits under public ethics laws.  [Added 4/20/10]  --  Jenne v. Fla. Dept. of Management Services, 36 So.3d 738 (Fla. 1st DCA 2010).

Lawyer who formerly was appointed county commissioner is not subject to 2-year post-officeholding representation restriction of F.S. 112.313(14).  [Added 9/30/09]  --  Florida Commission on Ethics Opinion 2009-16.

Lawyer who is school board member would not have conflict prohibiting him from voting to select lawyer in member's former law firm as school board attorney.  [Added 8/7/09]  --  Florida Commission on Ethics Opinion 09-12.

Prohibited conflict exists if other lawyers in county commissioner's law firm represent clients before the commission.  [Added 8/7/09]  --  Florida Commission on Ethics Opinion 09-10.

Public official who defended ethics complaint may recover attorney's fees incurred in proving entitlement to and amount of fees.  [Added 4/20/09]  --  Milanick v. Osborne, 6 So.3d 729 (Fla. 5th DCA2009) (on motion for clarification).

Law authorizing Legislature to discipline lobbyists does not violate separation of powers doctrine or infringe on Supreme Court's authority to regulate lawyers.  [Added 3/20/2009]  --  Florida Ass'n of Professional Lobbyists, Inc. v. Division of Legislative Information Services, 7 So.3d 511 (Fla. 2009).

Lawyer who acts as city attorney because his firm was retained as independent contractor must comply with financial disclosure law.  [Added 12/17/08]  --  Florida Commission on Ethics Opinion 08-27.

Florida Commission on Ethics addresses conflict issues presented by lawyer who is employee/general counsel of county health facilities authority and principal in private law firm.  [Added 8/6/08]  --  Florida Commission on Ethics Opinion 08-15.

Florida Commission on Ethics renders opinion on possible voting conflict of non-lawyer law firm member who acts as a lobbyist.  [Added 6/25/08]  --  Florida Commission on Ethics Opinion 08-13.

Financial disclosure laws apply to Regional Counsel (but not assistant counsel) in new Criminal Conflict and Civil Regional Counsel offices.  [Added 4/30/08]  --  Florida Commission on Ethics Opinion 08-9.

Public official falsely accused of ethics law violations not required to prove "actual malice" to recover fees and costs from accusers.  [Added 12/5/07]  --  Brown v. Florida Comm'n on Ethics, 969 So.2d 553 (Fla. 1st DCA 2007) (on rehearing).

Florida Commission on Ethics advises that conflict of interest under Florida ethics laws exists when member of city commissioner's law firm represents clients before Commission, but not before other city Boards.  [Added 6/7/07]  --  Florida Commission on Ethics Opinion 07-13.

Florida Commission on Ethics advises that law firm can be "lobbying firm" under state ethics law if even one firm lawyer is registered to lobby.  [Added 6/7/07]  --  Florida Commission on Ethics Opinion 07-08.

Florida Commission on Ethics order denying attorney's fees to subject of ethics complaint is reversed by Fifth DCA.  [Added 2/21/07]  --  Osborne v. Commission on Ethics, 951 So.2d 25 (Fla. 5th DCA 2007).

Florida Commission on Ethics opines whether conflict of interest exists where member of housing authority is partner in law firm that provides legal services to housing authority.  [Added 2/21/07]  --  Florida Commission on Ethics Opinion 07-1.

Former Brevard County Commission may not lobby county staff nor attend county commission for 2 years after leaving office.  [Added 1/8/07]  --  Florida Commission on Ethics Opinion CEO 06-22.

Bar Board of Governors revised ethics opinion to broaden ability of county attorney to represent individual county commission members charged by Florida Commission on Ethics.  Florida Ethics Opinion 77-30 (Reconsideration).

Florida Commission on Ethics opines that lawyer formerly employed by state agency cannot represent clients against agency for 2 years after leaving its employ.  Florida Commission on Ethics Opinion 06-1.

Appeals court reverses Ethics Commission order finding that lawyer/public official violated state ethics laws on conflict of interest.  Fanizza v. State of Florida, Commission on Ethics, 927 So.2d 23 (Fla. 4th DCA 2006).

State ethics law does not require recusal of or disclosure by lawyer who, as city commissioner, would vote on ordinance relating to private client's area of business.  Florida Commission on Ethics Opinion 05-15.

Former "OPS" state agency lawyer not covered by law restricting post-employment representation of private clients before agency.  Florida Commission on Ethics Opinion CEO 05-1.

Trial court staff attorneys not required to file financial disclosure statements under Fla.Stat. sec. 112.3145  Florida Commission on Ethics Opinion CEO 03-12.