#### Harold A. GREENE, Petitioner, v. STATE of Florida, Respondent.

No. 41163.

Supreme Court of Florida.

May 24, 1972.

John Germany, and C. Lawrence Stagg, of Holland & Knight, Tampa, and Pearson & Josefsberg, Miami, for petitioner.

Richard E. Gerstein, State’s Atty., and Milton Robbins, Asst. State’s Atty., for respondent.

PER CURIAM.

Before us for review by certiorari on certified question is the decision of the Third District Court of Appeal in State v. Greene, 247 So.2d 102 (3d DCA Fla. 1971), pursuant to Fla.Const. art. V, § 4(2), F.S.A.; Rule 4.5(c) (6) F.A.R., 32 F.S.A.

The question certified by the district court as one of great public interest is:

> “Whether a part-time public officer who is a practising lawyer violates Section 838.06, Florida Statutes [F.S.A.], by accepting a fee from a private client when his services to that client could include rendering an opinion based on information gathered from the public records of the governmental body of which he is a member, the fee not being paid to influence the official actions of the public officer ?”

The question is answered in the negative.

*195The facts are not in dispute. Petitioner, a practicing lawyer, was also a duly elected county commissioner of Dade County, Florida, which is a part-time public office. One Hyman Kirsner held an option to purchase a parcel of land in Dade County and retained petitioner as his attorney to represent him in connection with the proposed purchase. Kirsner’s principal problem was obtaining ingress and egress to what apparently was a land-locked parcel. After checking the matter, petitioner wrote his client and advised him not to exercise his option to purchase the property because of the doubtful access which was an essential factor to make the purchase attractive.

In carrying out his employment as attorney, the petitioner’s inquiry regarding access was actually in connection with neighboring property of the Merchandise Mart and did not involve any “official” inquiry undertaken as a county commissioner. Kirsner conceded that there was no agreement to advise him as to whether Dade County would provide an access road to the property. It was therefore a matter of information being determined and advice rendered — NOT a matter of petitioner bringing to bear any official influence to obtain — or to try to obtain — the desired access from Dade County. Nonetheless, the State viewed the transaction as a violation of Fla.Stat. § 838.06, F.S.A., of accepting unauthorized compensation, for determining whether an access road would be provided to the land, allegedly an “official duty” for which the law does not allow compensation to be accepted.

Petitioner was charged by information, based upon an earlier grand jury indictment, with violation of Fla.Stat. § 838.06, F.S.A., by accepting unauthorized compensation for performing an act, rule or regulation that he was required to perform, as a commissioner, in that petitioner did solicit and accept $1,000 to advise Kirsner “as to whether the public works department of Metropolitan Dade County, Florida, was to provide an access road for a parcel of land. . . . ”1 Upon the undisputed facts, on motion to dismiss under Cr. Rule 1.190, 33 F.S.A., the motion was granted, finding that this factual situation fails to state a crime under the provisions of Fla.Stat. § 838.06, F.S.A., as charged. We agree.

The opinion of the district court in reversing the trial judge recited that the violation charged was that certain information was within the power, duty and discretion of the petitioner-commissioner to determine as an official, so that he received unauthorized compensation by being paid once by the public and once by Kirs-ner for the same act. The fact that such information (although it turns out that there was really no showing as to how the county might have provided access to this land-locked property) *may*have been *available*to the commissioner (had he made “official” inquiry) is not to say *vis a*vis, (1) that he did in fact inquire in an official capacity as to such information, nor (2) that he provided such information officially obtained to his client, if he did so obtain it. Any information regarding public works and rights of way was not confidential ; it was available to anyone exercising the energy to look it up on the records. The State simply contends, “It was within his power and duty to obtain the information.” In this we reach a plateau of speculation which will not undergird the accusation.

We quote from the State’s brief:

> “The power bestowed upon Commissioner Greene by Subsections (20) and (1) to inquire as to whether an access road was to be provided for the parcel of land in question, or to vote for the provision of such access road, existed for the benefit of Hyman Kirsner and the remaining citizens of Dade County. Therefore, Commissioner Greene was required to exercise that power, without special compensation.”

*196This curious contention answers in its absurdity the question posed: whether the petitioner is without guilt.

Election to public office does not make one the private servant of all inquiring citizens. Neither does a part-time public official in the exercise of his public' service abandon the exercise of his professional skills by which he makes a livelihood, so long as the exercise of such skills do not transgress the public trust and his public duty within his office. Here it does not. The incidental fact that such public records are more easily found by one skilled in the profession does not render the public servant guilty of a violation of his duty merely by the fact that he could *also*inquire into such records if he needed to know personally in regard to informing himself on matters within his orbit of public responsibility. Such a sacrifice of his private endeavors is not required, keeping in mind always that he does not cross over into the area of providing confidential information to a client for which he collects a fee. Such is not the case here. The language of the district court opinion suggests that no inquiry by the public official can be separated from his official position, even though he is solely pursuing his private profession. We do not so view the matter under the limitations above outlined.

There was no “official” action either promised or undertaken by the defendant nor any agreement to advise regarding any role that the county might play regarding an access road. Petitioner’s real inquiry for his client was regarding any available access in connection with neighboring property owned by a private enterprise, the Merchandise Mart. It was nothing more than could have been done by any other lawyer in advising a client in this regard. Petitioner’s capacity as commissioner was simply not involved under the facts here. A part-time public official who is a lawyer should be placed in no worse position than any other lawyer to provide the services sought by his client, again so long as there is no official connection with his duties as commissioner, as emphasized above. Citizens’ participation in government is vital and it is important that able and qualified persons be encouraged to hold part-time public positions where the compensation is limited for the public benefit and not expected as full-time pay to such officials who are willing so to serve. We should not discourage those who are willing to do so by curtailing their livelihoods should they accept.

It is not contended nor charged that petitioner acted under his outlined duties as a commissioner regarding investigations of county affairs, records or reports, as by requiring such information from county employees or requiring the production of reports. There is no charge that defendant agreed to provide a road to this property nor to vote for a provision for one, nor to work for the accomplishment of it, but merely to obtain the information which he might glean upon investigation.2 This, and nothing more, he did. The facts sustain nothing more and constitute no basis for an illegal offense under the statute, so that the trial judge’s action in the nature of a “summary judgment” on undisputed facts under Cr. Rule 3.190 (formerly Cr. Rule 1.190) was a cor*197rect disposition of the case which we hereby affirm.

The certified question having been answered in the negative, the decision of the Third District Court of Appeal is quashed with directions to reinstate the order and judgment of the trial court dismissing all charges against the petitioner.

It is so ordered.

ROBERTS, C. J., and ADKINS, BOYD and DEKLE, JJ., concur.

McCAIN, J., dissents with opinion.

1

. This appears to be a case of first impression under § 838.06.

2

. The particular subsections referred to in the Information as being violated, provided that the powers of the Board of County Commissioners shall include the power to: “1. Provide and regulate arterial, toll, and other roads, bridges, tunnels, and related facilities; eliminate grade crossings; provide and regulate parking facilities, and develop and enforce master plans for the control of traffie and parking. . . . 20. Make investigations of county affairs, inquire into the conduct, accounts, records, and transactions of any department or office of the county, and for these purposes require reports from all county officers and employees, subpoena witnesses, administer oaths, and require the production of records.” Metro Dade Charter § 1.01(A).

McCAIN, Justice

(dissenting).

In this review by certiorari of a certified question from the Third District Court of Appeal, I must respectfully dissent from the majority herein for the following reasons.

Initially, it is noted that the question certified (thereby giving us jurisdiction) is not that as framed by the majority (which apparently was extracted directly from defendant’s petition). Looking to the record proper and to the certificate itself, the certified question should read:

> “Whether the action of a County Commissioner, whose duties include investigation of the conduct, records and transactions of any department or office of the county, of soliciting or accepting a substantial sum of money from a prospective purchaser of certain land, to advise the investor as to whether the Public Works Department of the County was going to provide an access road to such land, constitutes an offense under the laws of Florida, and in particular whether such constitutes a violation of the provisions of § 838.06, F.A.”

At first blush, one could think the phrasing of the question as herein distinguished, is meaningless, however, I believe it to be meritorious. The majority phrases the question in terms of a “practicing lawyer”, whereas in reality the provisions of Fla. Stat. § 838.06, F.S.A., are applicable to “any person” serving in the capacity of a “county commissioner”.

Admittedly, a practicing lawyer who also wears the mantle of an elected public servant must be most circumspect in agreeing to render his professional services and opinions for a fee. Nevertheless, in this cause the defendant “lawyer” sought the “office”, and not vice versa. Therefore, the conclusions surrounding the violation of this statute should be equally applicable to lawyers and non-lawyers alike who seek and are endowed by public confidence with a public office.

Fla.Stat. § 838.06, F.S.A., in material part, reads as follows:

> “It is unlawful for any public officer . to accept any . . . compensation, or other remuneration from any person whatsoever for the past, present or future performance, nonperformance or violation of any act, rule or regulation that may be . incumbent upon such public officer . to administer, respect, perform, execute or have executed ...”

One of defendant’s official duties as county commissioner was to administer the county road system in Dade County, Florida. This included the acquisition of the roadways. The defendant, allegedly, received compensation for advising his client not to purchase property which did not have access to such a county road. Roadway access was a problem from the beginning to the client, and when the defendant learned the property-in question was situate in the county (and without an access road) he could have withdrawn his representation and returned the fee. Instead, he chose to render his opinion and keep the fee. Consequently, acquisition of such roadways being a commissioner’s function, the defendant subjected himself to removal from a commissioner’s voting panel be*198cause of a “conflict of interest”, had acquisition of a roadway to the subject property become relevant (a factual situation not concluded by this record). Thus, defendant’s receipt of a fee rendered him incapable of official action on a public duty properly chargeable to him by the people. Surely, this is one of the purposes underlying Fla.Stat. § 838.06, F.S.A., in prohibiting receipt of unauthorized compensation, as distinguished from pure bribery.

Sub judice, the Third District Court of Appeal determined the defendant was charged with a violation of Fla.Stat. § 838.-06, F.S.A., which makes it unlawful for a public officer to *accept compensation*for *performance or non-performance*of any *act*that *may be*incumbent upon him *to administer.*I agree. This statute’s parlance is not to be construed as limited to the typical “influencing” surrounding the offense of bribery, but rather is directed to the receipt of unauthorized compensation for an act which he may have to perform.

Insofar as reasonably conceivable of the defendant’s public duties as bestowed by the general electorate, the subject matter of this alleged offense was within defendant’s power to be both informed on and, if necessary, to act upon.

I can naturally sympathize with one whose name may be transcribed to the future with dubious infamy, however, each crisis is cast in its own mold and the product must be viewed accordingly. Here, we are not concerned with the ultimate guilt or innocence of the defendant, but only with whether this record supports a prima facie allegation and violation of Fla.Stat. § 838.06, F.S.A. I believe it does and I can only conclude that the state has fulfilled its duty to the public.

Ultimate guilt or innocence therefore should be left for determination to the fairest arbiter of all, the jury. Otherwise, the error to society dispensed by the majority will have to be corrected by the experience of consequences.

I would therefore affirm the opinion of the District Court of Appeal and remand this cause for trial.