CEO 05-10 -- June 7, 2005

CONFLICT OF INTEREST

FLORIDA BUILDING COMMISSION TECHNICAL ADVISORY COMMITTEE MEMBER ATTORNEY IN LAW FIRM REPRESENTING CLIENTS REGARDING COMMISSION


To: Name withheld at the person's request.


SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were the law firm of a member of a Technical Advisory Committee to the Florida Building Commission to represent clients before the Committee, the Commission, or the Accessibility Advisory Council, or were the firm to lobby members of the Committee, the Commission, or the Council. Such would impede the full and faithful discharge of the member's public duties, would create a continuing or frequently recurring conflict between performance of public duties and private interests, or would constitute the holding of a contractual relationship by the member with a client subject to the regulation of his public agency. CEOs 03-7, 02-15, 99-11, 96-1, 88-40, 78-86, and 77-126 are referenced.[1]

QUESTION 1:


Would a prohibited conflict of interest be created were a member of a technical advisory committee of the Florida Building Commission who also is an attorney (or another member of his law firm) to represent clients before the committee or lobby committee members in behalf of clients?


Your question is answered in the affirmative.


By your letter of inquiry and a telephone conversation between you and our staff, [2] we are advised that ... (Appointee), a member of The Florida Bar practicing in a statewide law firm, is considering acceptance of appointment as a member of the Accessibility Technical Advisory Committee of the Florida Building Commission (FBC) but that he likely will not accept if appointment would affect his or his firm's ability to practice regarding the FBC. The FBC, you advise, is a governmental collegial body with the authority to adopt, maintain, amend, update, interpret, and facilitate education about the Florida Building Code (Code) and with the authority to appoint advisory committees (TACs) to assist it in performing its duties. TACs, you advise, are statutorily charged with reviewing proposed annual amendments to the Code, making recommendations to the FBC regarding the proposed amendments, and making recommendations to the FBC concerning whether local code amendments should be incorporated into the Code via its triennial update. Also, you advise, TACs review requests for declaratory statements and make recommendations regarding the FBC's disposition of the requests; and TACs historically have reviewed Code-related courses developed under contracts between providers and the FBC and have made technical recommendations regarding course content. Further, you advise that recommendations of TACs to the FBC carry no statutory or administrative presumption of correctness, but that, as a functional matter, the FBC typically adopts the recommendations.


Regarding the Appointee's practice, you advise that his is a large law firm that represents many clients with a substantial interest in the Code and related FBC efforts and that he has appeared before the FBC and the Accessibility Advisory Council (AAC) on numerous occasions representing developers, builders, and designers seeking a waiver of the Florida Accessibility Code for Building Construction. In addition, you advise that the Appointee and others from his firm represented a challenger to a local amendment to the Code that resulted in an appearance before and a final order from the FBC and that members of the Appointee's firm have lobbied the FBC for Code amendments and legislative recommendations and have litigated against the FBC in the past.


Section 112.313(7)(a), Florida Statutes, applicable to your inquiry, provides:


CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.óNo 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.


We find that a prohibited conflict of interest would be created under the statute for the Appointee were he to accept the appointment and become a member of the TAC [3] and were he or another member of his firm then to represent a client before the TAC or lobby a member of the TAC in behalf of a client. See CEO 96-1, Question 1, in which we found that a prohibited conflict of interest would be created were the law firm of which a member of the Jacksonville Electric Authority (JEA) had an "of counsel" relationship to represent clients before the JEA, reasoning that such representation interferes with the public officer's full and faithful discharge of his or her public duties and, where the representations are frequent, presents a continuing or frequently recurring conflict. See also CEO 77-126, CEO 78-86, and CEO 88-40.


QUESTION 2:


Would a prohibited conflict be created were the Appointee or another member of his firm to represent a client before the Accessibility Advisory Council?


This question is answered in the affirmative.


In addition to the information provided by you and recited above, you advise that the Legislature has created the Accessibility Advisory Council (AAC), whose members are appointed by the Secretary of the Department of Community Affairs to represent certain advocacy groups. [4] The AAC, you advise, reviews applications for waiver from the requirements of Florida's Accessibility Code for Building Construction, which has been incorporated into the Florida Building Code.


We find that a prohibited conflict also would be created were the Appointee or another member of his firm to represent a client before the AAC.[5] Inasmuch as both the Appointee's TAC and the AAC are involved in the subject matter of accessibility vis-à-vis the FBC, the Appointee's firm's representation of a client before the AAC would be fraught with the intersection of public duties and private interests which the statute seeks to prevent. See Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982). For example, the Appointee could be placed in the tenuous position of simultaneously being a member of a public body responsible for giving objective advice to the FBC regarding accessibility issues and a member of a law firm whose client is interested in accessibility waiver issues and related subject matter involving the AAC/FBC. The interrelationship of the AAC and the FBC (which is advised by the Appointee's TAC) is exemplified by Sections 553.512(1), 553.512(4), 553.73(1)(a), and 553.73(1)(b), Florida Statutes, which provide, respectively:


The Florida Building Commission shall provide by regulation criteria for granting individual modifications of, or exceptions from, the literal requirements of this part upon a determination of unnecessary, unreasonable, or extreme hardship, provided such waivers shall not violate federal accessibility laws and regulations and shall be reviewed by the Accessibility Advisory Council. . . .

Meetings of the advisory council shall be held in conjunction with the regular meetings of the commission.

The commission shall adopt, by rule pursuant to ss. 120.536(1) and 120.54, the Florida Building Code which shall contain or incorporate by reference all laws and rules which pertain to and govern the design, construction, erection, alteration, modification, repair, and demolition of public and private buildings, structures, and facilities and enforcement of such laws and rules, except as otherwise provided in this section.

The technical portions of the Florida Accessibility Code for Building Construction shall be contained in their entirety in the Florida Building Code. . . . Any revision or amendments to the Florida Accessibility Code for Building Construction pursuant to part II shall be considered adopted by the commission as part of the Florida Building Code. . . .



QUESTION 3:


Would a prohibited conflict be created were the Appointee or another member of his firm to represent a client before the FBC or lobby a member of the FBC in behalf of a client regarding issues related to the proceedings of his TAC?


This question is answered in the affirmative.


We find that the situation of this question presents the same type of conflict between public duties and private interests as that found in relation to the previous two questions.



QUESTION 4:


Would a prohibited conflict be created were the Appointee or another member of his firm to represent a client before the FBC or lobby a member of the FBC in behalf of a client regarding issues with no relation to the proceedings of his TAC?


This question also is answered in the affirmative.


Assuming arguendo that the FBC considers issues which are totally unrelated to the concerns of the Appointee's TAC, we find that the firm's representation of a client before the FBC or a member of the FBC regarding such an issue would create a prohibited conflict under the statute, especially if the FBC's actions or responsibility toward the client amounted to "regulation" within the meaning of the first part of Section 112.313(7)(a). In such a situation, the Appointee would hold a contractual relationship with a business entity (the client) [6] which is subject to the regulation of his "agency," or, at the very least, would be in a special, private (lawyer/firm/client) position of advantage occasioned by his public capacity knowledge of and contacts with the FBC. In making this finding, we do not overlook the fact that the Appointee is a member of a TAC and is not a member of the FBC itself. However, in numerous decisions we have opined that an advisory board to a governing body is considered a part of that body in determining an individual's "agency." See CEO 99-11 (DCF district health and human services advisory board member) and our opinions cited therein.


Your questions are answered accordingly.


ORDERED by the State of Florida Commission on Ethics meeting in public session on June 2, 2005 and RENDERED this 7th day of June, 2005.

__________________________

Joel K. Gustafson

Chairman

[1]Opinions of the Commission on Ethics (CEOs) are viewable on the Commission's website: www.ethics.state.fl.us.

[2]By telephone, you confirmed that ... (Appointee) desires an opinion from us and that he has authorized you to request the opinion in his behalf.

[3]We find that members of TACs are "public officers" for purposes of the standards of conduct contained in Section 112.313, Florida Statutes. See Section 112.313(1), Florida Statutes, which defines "public officer" to include "any person elected or appointed to hold office in any agency, including any person serving on an advisory body." Also, see CEO 02-15, Question 1, wherein we found that officers and directors of the Florida Space Industry Committee were "public officers."

[4]According to the information you have provided, the Appointee will not be a member of the AAC.

5]Or were the Appointee or another member of his firm to lobby a member of the AAC.

[6]It is our view that an attorney (other than one who merely is "of counsel" to a firm) holds a contractual relationship with each and every client of his or her law firm. See, for example, CEO 03-7.