CEO 94-41 -- October 13, 1994
CONFLICTS OF INTEREST; VOTING CONFLICTS OF INTEREST
CITY COUNCIL MEMBER EMPLOYED AS PARALEGAL
BY LAW FIRM WHICH MAY REPRESENT CLIENTS
IN VARIOUS MATTERS INVOLVING THE CITY
To: Mr. Michael S. Davis, City Attorney, City of St. Petersburg
No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, where the law firm employing a city council member as a legal assistant infrequently represents clients in matters before the city council or other city boards. Nor would a conflict be created where the firm occasionally represents clients doing business with the city. However, absent the applicability of an exemption contained in Section 112.313(12), Florida Statutes, Section 112.313(7)(a) would not permit the firm to represent the city while its employee serves on the city council. Additionally, Section 112.3143(3) would prohibit the council member from voting on matters which inure to the special private gain (or loss) of a client of the firm. CEO's 94-5, 88-43, and 75-136 are referenced.
Would a prohibited conflict of interest be created where a member of a city council is employed by a law firm as a legal assistant, and where the law firm may infrequently represent clients before the city council or other city boards, may infrequently represent clients in litigation involving the city, may infrequently represent clients doing business with the city, or where the law firm may contract with the city to provide legal services?
In your letter of inquiry, you represent that you seek this opinion on behalf of . . . . , who recently was appointed to fill a vacancy on the St. Petersburg City Council. The Council member is employed as a legal assistant with a local law firm, and we understand that in that capacity she has no contractual relationship with any of the firm's clients, provides no legal representation to them, and does not have any ownership or equity interest in the firm. We also are advised from your discussions with our staff that her employer engages in a somewhat specialized practice of law that, in the past, has not resulted in the representation of many clients before the City Council or other City boards, or in litigation involving the City. You do not anticipate this pattern of representation changing in the foreseeable future. However, because the possibility exists that the firm could represent a client that is involved in litigation with the City or has an interest being acted upon by either the City Council or another City board, she questions whether her employment as a paralegal with the law firm constitutes a conflict of interest prohibited by the Code of Ethics for Public Officers and Employees.
The statute primarily applicable is Section 112.313(7)(a), Florida Statutes, which provides:
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. [Section 112.313(7)(a), Florida Statutes (1993).]
The first part of Section 112.313(7)(a) prohibits a public officer from having an employment relationship with a business entity which is doing business with or regulated by her agency, the City Council. The second part of the statute prohibits her from having an employment relationship which creates a continuing or frequently recurring conflict between her private interests (or those of her employer) and the performance of her public duties, or which impedes the full and faithful discharge of her public duties.
With regard to the first scenario raised in your correspondence, where an attorney with the firm infrequently represents a client in a matter involving the City, either in litigation or before the City Council or another City board, and where she, as an employee of the law firm, has no involvement in the matter, we do not view the situation as creating a continuing or frequently recurring conflict between her private interests and the performance of her public duties, or an impediment to the full and faithful discharge of her public duties. By far, the majority of our opinions involving public officers and law firms have dealt with situations where the public officer was an attorney with the firm, and not with, as here, a member of its support staff. See CEO 94-5 and the opinions cited therein. In those referenced opinions we concluded that an attorney has a contractual relationship with each of the firm's clients, whether or not he personally was involved in their representation.
Here, however, under the circumstances presented we do not conclude that her employment relationship with the law firm and the firm's infrequent representation of clients with interests involving the City creates a continuing conflict or impediment to duty. In the one opinion factually on point, CEO 75-136, the issue before the Commission primarily involved voting conflicts of interest rather than conflicting employment relationships. However, there, we did not view the paralegal/city commissioner's employment relationship with a law firm representing a client in a matter that came before the city commission as creating a conflicting employment relationship. Instead, we urged that she consider abstaining from voting on matters where her employer was directly involved as an advocate. While we also have opined that recurring conflicts involving the public officer's frequent abstention can be viewed as an impediment to duty prohibited by Section 112.313(7)(a) [see Zerwick v. Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982)], the circumstances described here do not suggest that the law firm can be expected to regularly represent clients with matters involving the City. Therefore, based upon that factual predicate, we do not find her employment with the firm creates a conflict of interest prohibited by Section 112.313(7)(a), Florida Statutes, where the law firm employing her may represent a client occasionally or infrequently before the City Council or another City board, or in litigation involving the City.
Where the firm occasionally represents a client doing business with the City and where the Council member has no involvement in that matter as an employee of the law firm or as a member of the City Council, we would not view that situation as creating a conflict of interest prohibited by Section 112.313(7)(a). Although she would have an employment relationship with a business entity (the law firm) which has a contractual relationship with a client which is doing business with the City, under the rationale of CEO 88-43 and the opinions cited therein we have not previously viewed such situations as creating a conflict of interest prohibited by Section 112.313(7)(a).
If the law firm were to contract with the City to provide legal representation, notwithstanding the fact that she, as a legal assistant, may not be involved in the matter, we would view that situation as violating Section 112.313(7)(a), Florida Statutes, because she would have an employment relationship with the law firm which would be doing business with her agency. Unless one of the exemptions contained in Section 112.313(12), Florida Statutes, were applicable to excuse the conflict, the law firm would not be able to do business with the City while she serves on the City Council.
You indicated to our staff that the Council member recognizes that Section 112.3143(3), Florida Statutes, prohibits her from voting in certain situations, including when the matter being voted upon inures to the special private gain of a principal by whom she is retained. Because her "principal" would be the law firm where she is employed and not any of individual clients of the firm (unlike the attorneys in the firm), it is possible that some measures before the Council would inure to the special gain of a firm client without inuring to the special gain of her principal (the firm). Nevertheless, we find that the guidance contained in CEO 75-136 continues to be sound, insofar as it advised that public officer to abstain from voting on matters where the firm was representing a client before the city. We believe that that guidance is also appropriate here, as Section 286.012, Florida Statutes, permits a city official to abstain from voting where there is or appears to be a conflict under Section 112.3143. The Council member also may wish to contact us for further advice with respect to any particular matters that might inure to the special private gain of her employer's clients.
Your questions are answered accordingly.