CEO 74-72 -- November 25, 1974
CONFLICT OF INTEREST
PROPRIETY OF AN ATTORNEY WHO IS A MEMBER OF THE ASSESSMENT ADMINISTRATION REVIEW COMMISSION REPRESENTING INDIVIDUAL TAXPAYERS ON TAX ASSESSMENT MATTERS
To: Gary S. Brooks, Attorney, Miami
Prepared by: Gene L. "Hal" Johnson
In accordance with the definition of "public officer" set forth in s. 112.313(7), F. S., as amended by Ch. 74- 177, Laws of Florida, and with the powers accorded the Assessment Administration Review Commission in s. 195.098, F. S., members of the commission are public officers under the purview of the Code of Ethics, part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida. As an attorney, Mr. Brooks might represent clients contesting before the commission the assessment placed upon their real and personal property even though he sits on that commission. As pointed out in CEO 74-69 and CEO 74-70, public officers are prohibited by s. 112.313(5), supra, from entering situations placing public duty and private interest in conflict on a constant or recurrent basis. Since assessment cases rarely reach commission review level, Mr. Brooks's employment is neither constant nor recurrent. Further, statutes creating the commission and excluding commission members from full-time state employee status imply that representation such as Mr. Brooks might perform was neither unforeseen nor prohibited by the Legislature. Section 195.098(1)(a), F. S. Guided by the Administrative Procedure Act (s. 120.71, F. S., created by Ch. 74-310, Laws of Florida) and voting conflict of interest provisions of s. 112.314(2), supra, Mr. Brooks may represent clients in tax assessment cases before the commission.
Does my representation of individual taxpayers on tax assessment matters create a conflict of interest under the Code of Ethics, part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida, when I am also a member of the Assessment Administration Review Commission?
Your question is answered in the negative.
Chapters 74-176 and 74-177, Laws of Florida, amending part III, Ch. 112, F. S., create a code of ethics and financial disclosure procedure for public officers and employees. "Public officer" or "officer" is defined in s. 112.312(7), F. S., as created by Ch. 74- 177, supra, to include, among others:
Members of boards, commissions, authorities, special taxing districts, and the head of each agency, however selected but excluding advisory board members. (Emphasis supplied.)
The Assessment Administration Review Commission (hereinafter referred to as the "commission"), of which you are a member, is created by s. 195.098, F. S., pursuant to s. 1, Art. V, State Const. Such commission is more than advisory, having adjudicatory authority to hear complaints relating to approval or disapproval of the tax assessment rolls. The orders of the commission are binding and are reviewable only by the Supreme Court of Florida. Thus, we are of the opinion that a member of the commission is a "public officer" within the purview of s. 112.312(7), supra, and that, as a commission member, you must comply with the code of ethics and financial disclosure procedure established by part III, Ch. 112, F. S., as amended by Chs. 74-176 and 74-177, supra.
Against this background, you inquire as to whether it would be proper for you "to represent individual taxpayers in regard to tax assessment matters" while serving as a member of the commission. Specifically, this involves the representation of clients who are contesting the assessment placed upon both real and personal property which they own in their individual capacities.
Section 112.313, F. S., establishes standards of conduct for public officers. Only one of these provisions seems applicable to your situation, s. 112.313(5), F. S., which prohibits the acceptance of employment that will "create a conflict between [a public officer's] private interests and the performance of his public duties, or will impede the full and faithful discharge of his public duties." Your representation must be examined in light of this prohibition.
In our recent opinions CEO 74-69 and CEO 74-70 we have restricted the application of subsection (5) to those situations where the employment, by its very nature, creates a constant or recurring conflict of interest which will impede the public officer's performance of his public duties. Applying this criteria to your representations, we cannot say a conflict will be created.
While you are representing clients whose matters are within the jurisdiction of the Assessment Administration Review Commission, it is only the rare case that ever reaches that level of review. If it should happen that the commission were to review a matter concerning one of your own clients, you would be duty bound to report this as a voting conflict of interest under s. 112.314(2), F. S. Even though in our opinion these factors provide adequate protection to negate the operation of s. 112.313(5), in your case, two additional factors support our conclusion.
First, the section of the Florida Statutes establishing the membership of the Assessment Administration Review Commission specifically requires that one member "shall be knowledgeable in property tax law." Section 195.098(1)(a), F. S. This, together with the fact that the statute recognized that the members of the commission shall not be considered full-time employees of the state (s. 195.098(1)(a), F. S.), indicates an acknowledgment on the part of the Legislature that the situation about which you inquire might arise. Since the Legislature did not feel compelled to prohibit such representation, we cannot now say that such a relationship in itself constitutes a conflicting employment under s. 112.313(5), supra.
Finally, we wish to call your attention to a portion of the revised Administrative Procedure Act dealing with disqualification which becomes effective on January 1, 1975:
(1) Any individual serving alone or with others as an agency head shall be disqualified from serving in an agency proceeding for bias, prejudice, interest or other causes for which a judge may be recused. If the disqualified individual holds his position by appointment, the appointing power may appoint a substitute to serve in the matter from which the individual is disqualified. If the individual is an elected official, the governor may appoint a substitute to serve in the matter from which the individual is disqualified.
(2) Any agency action taken by a duly appointed substitute for a disqualified individual shall be as conclusive and effective as if agency action had been taken by the agency as it was constituted prior to any substitution. [Section 120.71, F. S., created by Ch. 74-310, Laws of Florida.]
Based on the totality of these factors, it is our opinion that you may represent individuals in the tax assessment matters which you have described.