CEO 95-7 -- March 9, 1995
CONFLICT OF INTEREST
CITY PLANNING ADVISORY BOARD MEMBER
REPRESENTING CLIENT IN MATTER BEFORE
CITY COMMISSION AND OTHER FORUMS
To: (Name withheld at the person's request.)
No prohibited conflict of interest was created under Section 112.313(7)(a), Florida Statutes, where a member of a city planning advisory board represented, as an attorney, a group of citizens who were opposed to a proposed platting action in their neighborhood. When the representation was initially undertaken it did not involve an action taken by the planning advisory board, and only when the citizens requested that the city commission enact an ordinance which would have the effect of preventing the platting action did the issue come before the planning advisory board. At no time did the planning advisory board member participate in or vote on any matter involving the issue. The planning advisory board member should disclose the names of clients represented before other agencies of the city on CE Form 2, Quarterly Client Disclosure, pursuant to Section 112.3145(4), Florida Statutes.
Was a prohibited conflict of interest created where you, a member of a city planning advisory board, represented as an attorney a group of neighbors who were opposing a proposed platting action, where you appeared before the city commission and filed a petition for a writ of certiorari in circuit court, and where the planning advisory board had no involvement in the issue until it was directed by the city commission to make a recommendation on the enactment of an ordinance sought by the individual neighbors?
Under the circumstances presented, your question is answered in the negative.
In your letter of inquiry, you relate that you serve on the City of Miami Planning Advisory Board and that you also are an attorney in private practice specializing in land use and local government law. Your law practice regularly brings you before local government agencies and boards in your representation of individuals and community groups concerned about protecting their neighborhoods from over-development. You also represent developers on occasion and have a large number of pro bono neighborhood clients, you relate. Further, we are advised that you have been a "community activist" for over 15 years and, in that capacity, have assisted individuals and neighborhood associations fighting land use and zoning battles in the area of Miami known as Coconut Grove. You acknowledge that this posture has sometimes put you at odds with members of the Miami City Commission, as well as members of the local development community.
We are advised that one of your paying clients is a group of neighbors who are challenging the application of the City's platting ordinance to a specific platting action in their neighborhood. You have appeared at City Commission meetings on behalf of this client, advising the Commission that you were retained by the client and had registered as a "lobbyist" pursuant to municipal code. At the two meetings where the issue was considered, members of the City Commission indicated that the matter would have to be resolved through litigation. A subsequent Petition for Writ of Certiorari was filed in Circuit Court in August 1994, and no ruling has yet been made.
In October 1994, the same group of concerned citizens petitioned the City Commission to enact an ordinance prohibiting the platting action that was the subject of the Petition for Writ of Certiorari. You were not retained by these citizens to represent them on this issue. The City Commission directed that the Planning Department prepare, and the Planning Advisory Board review, the ordinance the group requested. Before the item was scheduled for consideration by the Planning Advisory Board, you sought guidance from the City's legal staff as to the propriety of your voting on the proposed ordinance even though you were not retained by the citizen group on that particular issue. The Deputy City Attorney advised you to avoid even the appearance of a conflict and abstain from voting on the matter when it came before the Planning Advisory Board. You heeded this advice and were not present at the meetings in October and November when the Planning Advisory Board debated and voted on the ordinance.
The day after the Planning Advisory Board recommended to the City Commission that it adopt the ordinance, the neighbor whose platting action was the subject of the Petition for Writ of Certiorari appeared before the City Commission to object to your representation of the neighborhood group seeking the Writ of Certiorari while you served on the Planning Advisory Board, particularly since the Planning Advisory Board had recommended that the City Commission adopt the ordinance that would prevent him from taking his platting action. The City Commission thereafter encouraged you to seek an advisory opinion from this Commission as to the propriety of your representation of this neighborhood group.
In this regard, you ask whether it is a conflict of interest for a member of the Planning Advisory Board to represent clients before the City Commission or other boards of which he is not a member when the challenge does not relate to action by the Planning Advisory Board.
The applicable provision of the Code of Ethics for Public Officers and Employees is Section 112.313(7)(a), Florida Statutes, which states:
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 a contractual relationship with a business entity which is regulated by his agency. This clause would appear to be inapplicable to your situation because the group of neighbors retaining you does not appear to constitute a "business entity," as that term is defined in Section 112.312((5), Florida Statutes; nor is the group "regulated" in this instance by the Planning Advisory Board.
The second part of Section 112.313(7)(a) prohibits a public officer from having an employment or contractual relationship which creates a continuing or frequently recurring conflict between his private interests and the performance of his public duties, or which impedes the full and faithful discharge of his public duties. In CEO 89-39, we advised a member of a county consumer protection board who was also an attorney that this provision prohibited him from representing clients challenging or seeking relief from county action in regard to an order entered by a panel of the board on which he served. We viewed his client representation as totally incompatible with his duties as a board member to determine and punish violations of the county code as it related to consumer affairs, and with his board's interest in seeing that its orders were upheld and enforced. See also CEO 79-19.
Your situation is dissimilar to that which existed in CEO 89-39. Your representation of the client did not arise out of an action taken by the Planning Advisory Board but was initiated when the neighbors retained you to challenge the platting action before the City Commission. Unable to have the issue resolved at that level, you then filed the Petition for Writ of Certiorari in Circuit Court. It was not until after the neighbors, acting on their own, you advise, requested that the City Commission adopt an ordinance prohibiting the subject platting action that the Planning Advisory Board became involved. Additionally, we note that neither your efforts on behalf of this client nor the client's efforts individually appear to impugn any action or decision by the Planning Advisory Board. Thus, we do not believe that the conclusion we reached in CEO 89-39 would be applicable here.
More appropriate would be that rationale adopted in CEO 83-20, in which we advised a member of a city board of architects that he could represent clients before other city departments and boards and that he should comply with the disclosure requirements of Section 112.3145(4), Florida Statutes, regarding quarterly client disclosure. See also CEO 85-33 and CEO 79-7. While we would likely reach a different conclusion had you been retained by the neighbors after they asked the City Commission to enact the ordinance, under the circumstances presented we conclude that your representation of this group did not create a continuing or frequently recurring conflict between your representation of them and your duties as a member of the Planning Advisory Board, or an impediment to the full and faithful discharge of your public duties.
Accordingly, under the circumstances presented, we find that no prohibited conflict of interest was created where individuals you represented on a related matter asked the City Commission to consider enacting an ordinance to achieve their purpose, and where the Planning Advisory Board was subsequently directed to review the ordinance and make a recommendation to the City Commission about its adoption.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 9, 1995, and RENDERED this _____ day of March, 1995.
R. Terry Rigsby