CEO 07-13 -- April 25, 2007

CONFLICT OF INTEREST

CITY COMMISSION MEMBER'S LAW FIRM REPRESENTING CLIENTS
BEFORE THE COMMISSION OR OTHER CITY BOARDS

To: Name withheld at person's request

SUMMARY:

A conflict of interest would exist under Section 112.313(7)(a), Florida Statutes, were a member of a City Commissioner's law firm to represent clients, for compensation, before the City Commission, and the conflict would exist whether the Commissioner was an employee of the firm, or was "of counsel" to the firm.


No conflict of interest would exist under Section 112.313(7), Florida Statutes, were members of the Commissioner's firm to represent clients, for compensation, before other City boards. The Commissioner is encouraged to contact the Florida Bar for its opinion as to whether such representation would violate any standard of professional conduct.


QUESTION 1:

Would a prohibited conflict of interest exist were members of your law firm to represent clients, for compensation, before the Miami Beach City Commission while you serve as a member of that Commission?


Your question is answered in the affirmative.


In your letter of inquiry and additional materials supplied to this office, you advise that you are an elected member of the Miami Beach City Commission, and are employed by a law firm which represents clients before the City Commission and other City boards. You relate that your firm does not have any clients who do business with the City, or who are involved in litigation against the City.


With respect to your relationship with the firm, you advise that you are a salaried employee, not an officer, partner, or shareholder, and do not share in the firm's profits. You also advise that you do not personally handle any matters before any City board or committee.


Section 112.313(7), Florida Statutes, provides:


CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.(a) 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, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; 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.


The first part of Section 112.313(7) prohibits a public officer or employee from having a contractual relationship with any business entity regulated by or doing business with his agency.


As an attorney in the firm, you have a contractual relationship with the firm. Consistent with our prior opinions, you also have a contractual relationship with each client of the firm. CEO 96-1. However, you have advised that the City is not doing business with any client of the firm, and nothing in the information you have provided suggests that the City Commission is directly regulating the firm or any if its clients. To the extent that some of the firm's clients may be regulated by various City departments or boards, we have said that this would not give rise to a violation of the first part of Section 112.313(7). See, CEO 00-14 and CEO 92-2, and In re John Zerweck, 2 FALR 1097 (Commission on Ethics 1980), aff'd., Zerweck v. State of Florida, Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982).


We next turn to the question of whether your contractual relationship with either the firm or any of its clients would create a continuing or frequently recurring conflict, or impede you in the performance of your public duties in the event a firm member represents a client before the Commission.


The second part of Section 112.313(7) prohibits a public officer from having any contractual relationship which would create a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or that would impede the full and faithful discharge of his public duties. This provision establishes an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private interests to determine whether the two are compatible, separate and distinct, or whether they coincide to create a situation which "tempts dishonor." Zerweck, supra.


We have said on more than one occasion that "The representation of a client before a board of which one is a member interferes with the full and faithful discharge of one's public duties, in violation of s. 112.313(7)(a) . . . ." CEO 77-126; CEO 88-40. Even a single instance of such conduct impedes the performance of the public officer's duty, and thus violates the statute. CEO 78-86, CEO 89-47. Thus it is clear that you would be prohibited from representing clients before the City Commission. Further, in CEO 78-86, we said "We do not feel that this conflict of interest could be mitigated or avoided by having another member or an employee of the public officer's professional firm represent the client before his board. The same conflict of interest and appearance of conflict of interest would be involved in this type of representation, as well as the same direct private gain to the public officer."


We have also found that such a conflict would exist where the official serves in an "of counsel" capacity to his firm. Although as an "of counsel" attorney you would not have a contractual relationship with the firm's clients, you would still have a contractual relationship with the firm itself, and therefore a duty of loyalty to the firm's clients which would create a conflict were you called upon to make a decision when the firm was representing such a client. In CEO 96-11, we found that a prohibited conflict of interest would be created were members of the law firm with which a member of the Jacksonville Electric Authority Board had a "special counsel" relationship to appear before the board on behalf of a client of the firm. There, we said,


because of the Board member's close, regular, and continuing relationship with the law firm and duty of loyalty to the clients of the law firm . . . An impediment to public duties could exist for the Board member to favor the law firm or the client (his private interests) and to disregard his public duty to act independently and impartially in the best interests of the JEA, when the firm's representation of the client involves the JEA.


Accordingly, we find that a prohibited conflict of interest would exist were you or any member of your firm to appear before the City Commission, whether you are employed as a salaried associate or serve in an "of counsel" capacity to the firm.


QUESTION 2:

Would a prohibited conflict of interest exist were other members of your law firm to represent clients before City boards other than the City Commission?


Your question is answered in the negative as to Section 112.313(7), Florida Statutes; however, it is suggested that you also inquire of the Florida Bar.


You advise that your firm represents approximately 100 condominium or homeowners associations within the City. You state that your firm may represent clients before the Design Review Board, the Historic Preservation Board, the Planning Board, and the Board of Adjustments on issues such as approvals for projects, zoning variances, and modifications of development orders or redevelopment of property. The firm, you advise, is also involved in code compliance issues, representing clients before Special Masters2, and represents business owners or proprietors within the City who may have occasional issues such as signage approval. You wish to know whether Section 112.313(7) would prohibit members of your firm from appearing before City boards other than the City Commission.


Our opinions generally have found that no conflict would be created where a member of one board represented clients before another board within the same local government.


In CEO 79-7, one of our earliest analyses of the issue, an architect who was a member of his city's planning board inquired whether he could represent clients before other city boards and before the city planning department. We noted there our previous findings that representing a client before a board of which one is a member would interfere with the full and faithful discharge of one's public duties in violation of Section 112.313(7)(a), because it would jeopardize one's independence and impartiality, give one an undeniable advantage over other members of one's profession or occupation in such matters, and strongly present the appearance of public office being used for private gain. But as the architect had no authority or control over the other boards, nor over the employees of the planning department or other city departments, we observed that the problems against Section 112.313(7) sought to protect:


do not exist when one represents a client before boards of which one is not a member. Section 112.316, F. S., mandates that the Code of Ethics for Public Officers and Employees not be construed to prevent any officer or employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge of his public duties. Were the subject planning board member to represent his client before other city boards, his public duties as a member of the planning board would not be involved. Therefore, there would be no possibility of a conflict of interest, a situation in which regard for his private interests would tend to lead to disregard of his public duties. [Emphasis supplied.]


We do not find that analysis persuasive in this particular instance, because you have advised that while some decisions of the boards before which members of your firm would appear are final, subject to appeal to the Circuit Court, other decisions may either be appealed to the City Commission or must come before the Commission for ratification.3 Therefore, unlike the planning board member in CEO 79-19, you are in a position as a member of the governing board of the City to directly review in at least some cases the work of the board before which a member of your firm has appeared, and it cannot be said that there is no possibility of a conflict.


Another rational for finding that a member of one board could represent clients before a different board was explained in CEO 86-47. There, the inquiry came from a city councilman who wished to represent clients as a consulting engineer or land surveyor before other city boards. There we pointed out that although Article II, Section 8(e), of the Florida Constitution, prohibited members of the Legislature from personally representing clients for compensation before State agencies, and provided for the establishment of similar restrictions on other public officers and employees, no such restrictions had been enacted. That is still the case, and we have interpreted the prohibition applicable to members of the Legislature to allow members of the Legislator's firm to appear before State agencies. See, CEO 01-3, fn. 10.


This rationale, too, fails to persuade us here, because as a member of a seven-member City Commission, your opportunity to impact the various boards and department staff before which members of your firm may appear is much greater than that of a State Legislator to impact a state agency.


However, in CEO 79-7 we also cited, as part of our reasoning, the reporting requirement of Section 112.3145(4), Florida Statutes, pointing out that, "The policy of the Code of Ethics is to require disclosure of representations rather than to prohibit them." Section 112.3145(4) requires reporting of clients represented by a local elected officer, or members of the officer's firm, at his or her "level of government." As we have previously construed one's "level of government" to mean one's political subdivision (CEO 80-63), were we to find that such representation is completely prohibited we would render this provision a nullity. We cannot give the conflict provision such an interpretation. Therefore, it is our opinion that you would not be prohibited by Section 112.313(7), Florida Statutes, from having a contractual relationship with your firm while members of the firm represent clients before City boards other than the City Commission.4


We observed in CEO 88-40, that Opinion 74-27 of the Professional Ethics Committee of the Florida Bar advised that a city board member could represent a client before other city agencies only if the matter had no relationship to any decision made by the board, the board had no control over any administrative officer before whom the attorney would appear, and the board had no control over any public official who might appear in a proceeding as a witness and whose testimony the attorney might have to attack. Consistent with our advice in CEO 88-40, we suggest you contact the Bar for its opinion in this regard.


Accordingly, it is our opinion that a prohibited conflict of interest under Section 112.313(7), Florida Statutes, would exist were a member of your firm to represent a client, for compensation, before the City Commission. No such conflict would be presented were a firm member to represent clients before City boards other than the City Commission, but as the Florida Bar has issued an opinion on similar facts, we suggest that you also seek its advice as to these circumstances.


ORDERED by the State of Florida Commission on Ethics meeting in public session on April 20, 2007 and RENDERED this 25th day of April, 2007.

________________________
Norman M. Ostrau, Chair


[1]Affirmed on appeal without a published opinion, as Korman v. State Commission on Ethics, 710 So. 2d 553 (Fla. 1st DCA 1996).

[2]You do not inquire, and we do not opine, as to whether a conflict would be created by your or your firm members' appearance before a Special Master.

[3]For example, you state:

With regard to matters before the Zoning Board of Adjustment, the final decision of the Zoning Board must be appealed to the Circuit Court. With regard to the Planning Board, conditional use decisions are appealed to the Circuit Court. Land Use regulation decisions are advisory to the Commission and certain decisions of the Planning Board require a 5/7 vote of the Commission for reversal. Historic Preservation Board decisions on individual applications are appealed to the Special Master. Historic Preservation Board decisions to designate an entire area as historic do come before the Commission for approval, as do decisions on public properties. Design Review Board decisions are usually appealable to the Commission, subject to a 5/7 vote, except for certain matters which are appealed to the Zoning Board of Adjustment.

[4]It appears that such appearances would be reportable under Section 112.3145(4), Florida Statutes, using our Form 2, Quarterly Client Disclosure.