CEO 78-33 -- May 18, 1978

CONFLICT OF INTEREST

CITY PLANNING AND ZONING COMMISSION MEMBER REPRESENTING AS ATTORNEY DISMISSED CITY EMPLOYEES

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

Prepared by: Phil Claypool

SUMMARY:

The question of whether a prohibited conflict of interest exists when a member of a city planning and zoning commission privately represents as an attorney city employees in grievance proceedings turns on whether such representation constitutes employment or a contractual relationship which creates a continuing or frequently recurring conflict of interest or which would impede the full and faithful discharge of public duties as prohibited by s. 112.313(7)(a), F. S. 1977. Because the subject commission member's official function is related to planning and zoning matters, rather than to grievance or personnel issues, recommendations he may make to the city council as a member of the commission should not be influenced by his regard for the interests of his clients because he is not in a position to give advice regarding or to otherwise influence the hiring, firing, or reinstatement of employees. While there does exist the appearance of a conflict in that he is responsible for advising the city council in land- planning and zoning matters while representing a client against the city, this conflict is not substantial or sufficiently direct to be absolutely prohibited by the Code of Ethics. Accordingly, the Code of Ethics is found not to prohibit a member of a municipal planning and zoning commission from representing as an attorney dismissed city employees in grievance proceedings. However, under the terms of s. 112.3145(4), F. S. 1977, the subject commission member is required to file a quarterly report of the names of clients represented for a fee or commission before agencies of the city.

QUESTION:

Does a prohibited conflict of interest exist where a member of a city planning and zoning commission privately represents as an attorney city employees in grievance proceedings?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff you advise that ____, an attorney, was appointed by the ____ City Council as a member of the planning and zoning commission, which is responsible for advising the city council as to all matters relating to zoning variances, special exception use permits, and planned unit developments as well as for assisting in the development of a comprehensive land use plan. You also advise that members of the planning and zoning commission work very closely with city employees in the planning and building departments who are employed by or under the direction of the city manager. In addition, you state that the subject commission member has undertaken privately to represent dismissed city employees against the city in grievance procedure matters. In a conversation with our staff, you advised that one of these dismissed employees was the secretary to the public works director, and that the other was the planning director, the head of the planning department, who also acted as the secretary of the planning and zoning commission.

The Code of Ethics for Public Officers and Employees 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 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. [Section 112.313(7)(a), F. S. 1977.]

The first part of this section, prohibiting a public officer from having employment or a contractual relationship with certain business entities, is not applicable to the present situation because a dismissed employee does not constitute a "business entity" as that term is defined in s. 112.312(3). See CEO's 76-3 (question 2) and 77-88. The second part of s. 112.313(7)(a), above, prohibits a public officer from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. We are of the opinion that this prohibition also is not applicable to the facts you have presented.

The basic question here is to what extent will the subject commission member's regard for his private interest in representing dismissed city employees tend to lead to disregard of his public duties as a member of the commission. Looking at the situation from his point of view, we perceive no overlapping authority or duty between his public and private responsibilities. His official function is related to planning and zoning matters, not to grievance or personnel matters; recommendations he may make to the city council as a member of the commission should not be colored by his regard for the interests of his clients because he is not in a position to give advice regarding or to otherwise influence the hiring, firing, or reinstatement of employees. While there does exist the appearance of a conflict of interest, in that he is responsible for advising the city council in land-planning and zoning matters while representing a client against the city, this conflict is not substantial or sufficiently direct to be absolutely prohibited by the Code of Ethics. In this regard, see, for example, CEO 77-126, in which we found that the Code of Ethics prohibits a planning and zoning board member from representing architectural clients before his own board. Nor do we feel that the fact that one of the dismissed employees had served as planning director creates a greater conflict with the subject commission member's public duties than would occur if they had not worked together in the past.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit a member of a city planning and zoning commission from representing as an attorney dismissed city employees in grievance proceedings. Please note that under the terms of s. 112.3145(4), F. S. 1977, the subject commission member is required to file a quarterly report of the names of clients represented for a fee or commission before agencies of the city.