CEO 91-20 -- April 19, 1991

CONFLICT OF INTEREST; VOTING CONFLICT OF INTEREST

CITY COMMISSION CANDIDATE SERVING AS ATTORNEY FOR WATER CONTROL DISTRICT ENCOMPASSING PART OF CITY AND SERVING AS ATTORNEY FOR INDIVIDUALS WHO ARE OFFICERS, DIRECTORS, OR EMPLOYEES OF CORPORATIONS APPEARING BEFORE COMMISSION

To: (Name withheld at the person's request.)

SUMMARY:

No prohibited conflict of interest would be created were an attorney representing a water control district, the territory of which covers approximately one third of the area of a city, to be elected to the city commission of that city. Under the circumstances presented, Section 112.313(7)(a), Florida Statutes, would not be violated because the district would not be doing business with or subject to the regulation of the city, because the attorney would not be representing the district before the commission, and because the attorney would not be litigating for the district against the city. Under Section 112.3143(3), Florida Statutes, the attorney, as commissioner, would not be prohibited from voting on matters affecting the district because the district constitutes an "agency."

Were the attorney to be elected to the city commission, as a general rule no prohibited conflict or voting conflict would be created by the representation of employees, officers, or directors of corporations in their private individual affairs, where the corporations may have matters before the commission. However, were the situation to be such that there existed a close identity between such individuals and the corporations, a continuing or frequently recurring conflict, impediment to duty, or voting conflict might arise. CEO's 80-12, 80-79, 81-25, 81-46, 82-7, 83-38, 85-39, 88-8, 88-20, and 88-40 are referenced.

QUESTION 1:

Would a prohibited conflict of interest be created were you, an attorney who represents a water control district encompassing approximately one third of the area of a city, to be elected to the city commission of that city?

Your question is answered in the negative, subject to the conditions noted below.

In your letter of inquiry and in subsequent telephone conversations with our staff, you advise that you recently were an unsuccessful candidate for the Coral Springs City Commission and that you are running again for a Coral Springs City Commission post in an upcoming election. You are an attorney who has represented the Sunshine Water Control District as a client for approximately five years, you advise. The territory of the District, an agency organized pursuant to Chapter 298, Florida Statutes, encompasses up to one third of the area of the City. Activities of the City, such as the digging of wells, on occasion have caused public disgruntlement by affecting the water level in canals of the District, you advise, and District canals at times flood City streets. You report that never have appeared before the Commission as an attorney on behalf of the District and that you will not be doing so in the future. In the past the City has applied to the District for permission to do such things as place a City fishing dock or boat ramp in a District canal, you advise, but this was done without, and did not involve, your legal services to the District. You represent that you would not be involved in any such applications in the future.

There are no contracts in existence between the City and the District, you relate. You recall one past occasion on which the District requested the City to pay workers who cleaned District canals while working from boats provided by the District. You know of no past or existing lawsuits between the District and the City, and you have handled no litigation against the City on behalf of the District. However, you indicate, you would litigate against the City on behalf of the District should that become necessary in the future. You further indicate that you would abstain from voting on, and refrain from participating in discussion and debate about, issues before the City Commission regarding any litigation or potential litigation that might arise between the City and the District. You likewise would refrain from voting on or attempting to influence the Commission regarding any other District matters coming before the City Commission. Approximately three percent of your income from the practice of law comes from your compensation by the District, you advise, but none of this income derives from District representation before the City Commission. You say you do not anticipate any changes in this income situation.

Additionally, you advise that you have as legal clients individuals who are officers, directors, or employees of corporations that appear before the City Commission on matters including zoning requests. You represent or have represented these individuals in matters such as dissolution of marriage and will-drafting but not on matters related to the requests of their corporate employers before the Commission.

Section 112.313(7)(a), Florida Statutes, provides in relevant part:

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 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 private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties.

This provision prohibits a public officer or public employee from having an employment or contractual relationship with a business entity or agency which is subject to the regulation of or is doing business with his public agency. It also prohibits contractual or employment relationships that create continuing or frequently recurring conflicts between private interests and the performance of public duty or that impede the full and faithful discharge of public duty.

The City Commission would be your "agency" for purposes of this provision. The District would not be your agency because, upon the facts you present, your relationship to the District would be that of an independent contractor rather than that of a public officer or public employee. See CEO 85-39. From the facts you present, it is apparent that, as attorney for the District, you have a contractual relationship with the District. See CEO 80-79. It is also apparent that the District is not doing business with the City. Further, the District is not subject to the regulation of the City. The District is an independent governmental entity under Chapter 298, Florida Statutes, which has, among other powers, the power to levy taxes. In previous opinions we have held that independent governmental units are not subject to the regulation of cities or other governments within the meaning of that phrase in Section 112.313(7)(a). See CEO 81-25, CEO 81-46, and CEO 83-38. We believe your situation, as to the contractual relationship prohibition, is governed by the rationale of those and similar opinions and thus would not violate that prohibition.

The prohibition of Section 112.313(7)(a) regarding frequently recurring conflict and impediment to full and faithful discharge of duty would not be violated under the facts you present as long as you do not represent the District before the City Commission or in litigation against the City and as long as the District does not appear before the City Commission on a frequently recurring basis. See CEO 88-40, CEO 88-8, CEO 82-7, and CEO 80-12.

Accordingly, subject to these conditions, we find that no prohibited conflict of interest would be created under the Code of Ethics by your serving as a City Commissioner while serving as attorney for the Water Control District.

QUESTION 2:

If you were to be elected as a City Commissioner, would you be required to abstain from voting on matters involving the District which come before the City Commission?

This question is answered in the negative.

The Code of Ethics provides in relevant part:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one-acre, one-vote basis is not prohibited from voting. [Section 112.3143(3), Florida Statutes.]

This provision would prohibit you as a city commissioner from voting on measures which inure to your special private gain or that of a principal by whom you are retained, unless your principal is an "agency" as defined in Section 112.312(2), Florida Statutes.

Because your principal is the District, and because the District is such an agency, you are not prohibited from voting on matters relating to the District which come before the City Commission. See CEO 88-20, Question 2.

Your question is answered accordingly.

QUESTION 3:

Would a prohibited conflict of interest be created were you to be elected to the City Commission while representing as an attorney individuals who are officers, directors, or employees of corporations that appear before the City Commission on matters, including zoning requests?

From the facts you relate to us, these individuals cannot be said to be business entities doing business with or subject to the regulation of the City Commission--your potential agency. Therefore, your relationship with them would not be, under those facts, a violation of the first prohibition of Section 112.313(7)(a). In addition, under the facts you present, your representation of such persons would not constitute a frequently recurring conflict or impediment to duty as long as you do not represent them before the City Commission or in litigation against the City. However, were a situation to present itself where these individuals held substantial stock in the corporations or were otherwise closely identified with them, and the corporations were appearing frequently before the City Commission, a frequently recurring conflict or impediment to duty might be present. If such a situation presents itself, you should request another opinion from us.

Further, since it is the individuals who work for the corporations, rather than the corporate entities themselves, who would be the principals retaining you, as a general rule measures pertaining to the corporations would not inure to the private gain of you or your principals. Section 112.3143(3), therefore would not require you ordinarily to abstain from voting on these types of measures. Nevertheless, we can conceive of situations where the interests of such individuals are so intertwined with those of the corporations, such as where an officer is sole owner of a corporation or where an employee would receive a bonus or commission were a contract to be awarded to the corporation, that a measure voted upon which would inure to the gain of the corporation also would inure to the gain of the individual. Should you be elected and such a situation arise, we suggest that you request another opinion based on the specific circumstances presented by that situation.

Your question is answered accordingly.