Is a city advisory committee member a 'public servant' under Florida bribery law?

Subject

Procurement -- Public Servant

Plain-English summary

The City of Miami Gardens attorney asked whether a person appointed to an advisory committee that recommends public procurement projects is a "public servant" under section 838.014(6), Florida Statutes, and whether such a committee member could be prosecuted for bribery.

On the first question, the AG read the statutory definition broadly. Section 838.014(6) defines "public servant" to include any officer or employee of a state, county, municipal, or special district agency, certain legislative and judicial officers and employees, and people acting as consultants, auditors, and similar roles while performing a governmental function. Nothing in that definition carves out someone serving in a purely advisory capacity. The AG contrasted this with the constitutional dual office-holding prohibition, where a purely advisory position is exempt; the bribery chapter's definition is broader. So the AG could not say a municipal board member who makes procurement recommendations falls outside the definition, and concluded such a person could be considered a public servant.

On the second question, whether a committee member could actually be prosecuted for the commercial-bribery crimes in sections 838.15 and 838.16, the AG declined to decide. Because those are criminal statutes, the determination of whether to prosecute rests with the State Attorney for the circuit where the alleged activity occurred.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Who is a "public servant" under Florida's bribery chapter?
Section 838.014(6) defines it broadly: any officer or employee of a state, county, municipal, or special district agency; legislative or judicial officers and employees; people acting as magistrate, receiver, auditor, arbitrator, consultant, hearing officer, and similar roles while performing a governmental function; and candidates for those positions.

Does an advisory-only committee member count?
The AG concluded the definition does not exclude someone serving in a purely advisory capacity, so a procurement advisory committee member appears to fall within it. The opinion noted this is broader than the dual office-holding rule, which exempts purely advisory positions.

What is the difference between an "office" and "employment" here?
Quoting State ex rel. Holloway v. Sheats, the AG explained that an "office" involves a delegation of part of the sovereign power, with tenure and duties defined by law, while an "employment" carries no such delegated sovereign authority. That distinction matters for dual office-holding, but the public-servant definition sweeps in officers and employees alike.

Could an advisory member be prosecuted for bribery?
That is not something the AG decided. Whether a person may be prosecuted under the commercial-bribery statutes (sections 838.15 and 838.16) is within the prosecutorial discretion of the State Attorney for the circuit where the alleged violation occurred.

Background and statutory framework

Chapter 838, Florida Statutes, addresses bribery and misuse of public office. Section 838.014(6) supplies the broad "public servant" definition the opinion analyzed. The AG compared it to the dual office-holding context under section 5(a), Article II of the Florida Constitution, where the Florida Supreme Court's "office versus employment" distinction (State ex rel. Holloway v. Sheats; State ex rel. Clyatt v. Hocker) exempts purely advisory statutory positions. Because Chapter 838's definition is not limited that way, the AG declined to read in a comparable advisory exemption.

The commercial-bribery crimes are in sections 838.15 (commercial bribe receiving) and 838.16 (commercial bribery), each a third-degree felony punishable under sections 775.082, 775.083, or 775.084. Consistent with its practice on criminal statutes, the AG left any prosecution decision to the State Attorney.

Citations

• Section 838.014(6), Florida Statutes; sections 838.15 and 838.16, Florida Statutes
• Section 5(a), Article II, Florida Constitution
• Sections 775.082, 775.083, and 775.084, Florida Statutes
• State ex rel. Holloway v. Sheats, 83 So. 508 (Fla. 1919)
• State ex rel. Clyatt v. Hocker, 22 So. 721 (Fla. 1897)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/procurement-public-servant
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8086

Original opinion text

Ms. Sonja K. Dickens

City of Miami Gardens Attorney

1515 Northwest 167th Street

Building 5, Suite 200

Miami Gardens, Florida 33169

Dear Ms. Dickens:

You have asked for this office's assistance in determining whether an advisory committee member appointed by the city council to provide recommendations for public procurement projects is a "public servant" pursuant to section 838.014(6), Florida Statutes.[1] You also inquire whether the committee member may be prosecuted for bribery as defined in sections 838.015 and 838.016, Florida Statutes.

In sum, the definition of a "public servant" in section 838.014(6), Florida Statues, appears to broadly apply to any officer or employee of a governmental entity and does not exclude an individual who is serving in a purely advisory capacity. Whether an individual may be prosecuted for bribery under sections 838.015 and 838.016, Florida Statutes, is a determination which would be within the prosecutorial discretion of the state attorney for the circuit in which the alleged activity occurred.

Section 838.014(6), Florida Statutes, defines "Public servant" as:

"(a) Any officer or employee of a state, county, municipal, or special district agency or entity;

(b) Any legislative or judicial officer or employee;

(c) Any person, except a witness, who acts as a general or special magistrate, receiver, auditor, arbitrator, umpire, referee, consultant, or hearing officer while performing a governmental function; or

(d) A candidate for election or appointment to any of the positions listed in this subsection, or an individual who has been elected to, but has yet to officially assume the responsibilities of, public office." (e.s.)

While the term "officer" is not defined for purposes of Chapter 838, Florida Statutes, the Supreme Court of Florida, for purposes of the dual office-holding prohibition in section 5(a), Article II, Florida Constitution,[2] has stated:

"The term 'office' implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office, while an 'employment' does not comprehend a delegation of any part of the sovereign authority. The term 'office' embraces the idea of tenure, duration, and duties in exercising some portion of the sovereign power, conferred or defined by law and not by contract. An employment does not authorize the exercise in one's own right of any sovereign power or any prescribed independent authority of a governmental nature; and this constitutes, perhaps, the most decisive difference between an employment and an office . . . ."[3]

It is, therefore, the nature of the powers and duties of a particular position that determines whether it is an "office" or an "employment." Membership on the governing body of a governmental entity, such as a county or municipality, clearly constitutes an office. For purposes of the constitutional dual office-holding prohibition, however, a statutorily created position having purely advisory duties is exempt from the constitutional prohibition.

You have not directed my attention to, nor have I found, a similar exemption from Chapter 838, Florida Statutes, for a public position having a purely advisory capacity. The definition of a "public servant" in Chapter 838, Florida Statutes, appears to have a broader application than the constitutional dual office-holding prohibition and I cannot say that a member of a municipal board with the role of making recommendations regarding procurements would not fall within the definition. It would appear, therefore, that any individual serving in a public position as an officer or an employee could be considered a "public servant" under the definition in section 838.014(6), Florida Statutes.[4]

Sections 838.15 and 838.16, Florida Statutes, criminalize "commercial bribe receiving" and "commercial bribery."[5] Due to the criminal nature of the statutes, it would be within the province of the state attorney for the circuit in which an alleged violation of the statute has occurred to make the determination of whether a person would be subject to prosecution under the act.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/tsh

[1] Your correspondence reflects s. 838.014(5), Fla. Stat., but subsection (6), is the definition for "public servant."

[2] Section 5(a), Art. II, State Const., provides:

"No person holding any office of emolument under any foreign government, or civil office of emolument under the United States or any other state, shall hold any office of honor or of emolument under the government of this state. No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, taxation and budget reform commission, constitutional convention, or statutory body having only advisory powers."

[3] State ex rel. Holloway v. Sheats, 83 So. 508, 509 (Fla. 1919). And see State ex rel. Clyatt v. Hocker, 22 So. 721 (Fla. 1897).

[4] Cf. Op. Att’y Gen. Fla. 12-21 (2012) (executive director of private non-profit organization performing a governmental function does not fall within definition of "public servant" for purpose of prosecution under s. 838.22, Fla. Stat.).

[5] Section 838.15, Fla. Stat., provides:

"Commercial bribe receiving.—

(1) A person commits the crime of commercial bribe receiving if the person solicits, accepts, or agrees to accept a benefit with intent to violate a statutory or common-law duty to which that person is subject as:

(a) An agent or employee of another;

(b) A trustee, guardian, or other fiduciary;

(c) A lawyer, physician, accountant, appraiser, or other professional adviser;

(d) An officer, director, partner, manager, or other participant in the direction of the affairs of an organization; or

(e) An arbitrator or other purportedly disinterested adjudicator or referee.

(2) Commercial bribe receiving is a third degree felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084."

Section 838.16, Fla. Stat., provides:

"Commercial bribery.—

(1) A person commits the crime of commercial bribery if, knowing that another is subject to a duty described in s. 838.15(1) and with intent to influence the other person to violate that duty, the person confers, offers to confer, or agrees to confer a benefit on the other.

(2) Commercial bribery is a third degree felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084."