CEO 02-5 -- March 19, 2002
CONFLICT OF INTEREST
SCHOOL BOARD MEMBER'S LAW FIRM REPRESENTING CLIENT BEFORE COUNTY VALUE ADJUSTMENT BOARD
To: Name withheld at person's request
A school board member's "agency" does not include the county value adjustment board where he 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. Therefore, Section 112.313(7)(a) would not be violated by the school board member's representation of an existing client before the value adjustment board. The school board member is cautioned to be mindful of ex parte proscriptions applicable to value adjustment board proceedings.
Would a prohibited conflict of interest be created were a school board member's law firm to represent a client before the county value adjustment board and where two fellow members of the school board sit by designation on the value adjustment board?
Your question is answered in the negative.
In your letter of inquiry, you relate that you are a member of the Broward County School Board and that you are also an attorney in private practice. Your law firm has been requested by an existing client to represent it before the Broward County Value Adjustment Board, and you question whether this representation would create a prohibited conflict of interest.
The Value Adjustment Board (VAB) is statutorily comprised of three members from the County Commission and two members from the School Board, pursuant to Section 194.015, Florida Statutes. You relate that although you do not serve as one of the School Board's designees on the VAB, all the members of the School Board are considered alternates if a substitute must be had for either of the two School Board designees serving on the VAB. You further relate that, to your knowledge, the need to obtain a substitute School Board member has only arisen once since 1998. Under these circumstances, you question whether a prohibited conflict of interest would be created if you or your firm were to represent a client before the VAB.
Section 112.313(7)(a), Florida Statutes, provides:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee . . .; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties, or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes (2001).]
The first part of this statute prohibits you from having a contractual relationship with a business entity that is doing business with or regulated by your agency. The second part of Section 112.313(7)(a) prohibits you from having a contractual relationship which creates a continuing or frequently recurring conflict between your private interests and the performance of your public duties, or impedes the full and faithful discharge of your public duties.
Your "agency" for purposes of the Code of Ethics would be the Broward County School Board, not the VAB. In CEO 80-85, the Commission considered whether alternate members of the Florida Municipal Power Agency were "public officers" for purposes of the Code of Ethics. There, we concluded that persons who were neither elected by the public nor appointed by an official authority but who served as temporary substitutes for the directors who had been appointed were not "public officers" under Chapter 112, Part III. Therefore, based upon the rationale of this opinion, the possibility that you might be called to serve as an alternate on the VAB does not make the VAB your "agency" for Section 112.313(7)(a) and there would be no conflict by your representation under the first part of this provision.
Concerning the second part of Section 112.313(7)(a), we opined in CEO 93-36 that a prohibited conflict of interest would be created under this provision if a school board member who also served on his county's value adjustment board stepped down to represent a client (who was also a fellow school board member) before the value adjustment board. That conclusion was premised on our long-standing precedent that a public officer cannot represent persons before his own agency without violating the second part of Section 112.313(7)(a). Here, where the VAB is not your agency, our holding in CEO 93-36 would not be applicable.
However, we are mindful of appearances. See CEO 74-50 and subsequent opinions which reference it. Even though the Code of Ethics does not specifically prohibit a public officer from appearing before fellow members of his own board who are serving in a different capacity, it is conceivable that they could be deferential to you or have some bias in favor of (or against) you based on their service with you on the School Board. Notwithstanding, we are not inclined to view that possibility as a conflict of interest prohibited by Section 112.313(7)(a), as there is nothing to suggest that you frequently represent clients before the VAB or that it would impede the full and faithful discharge of your public duties on the School Board to represent this one client before the VAB. Although it is not addressed by the Code of Ethics in Chapter 112, Part III, Florida Statutes, you should be careful that your contacts with the fellow School Board members serving on the VAB are consistent with the VAB's policy on ex parte communications.
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 14, 2002 and RENDERED this 19th day of March, 2002.
Ronald S. Spencer, Jr., Chair