CEO 02-19 -- December 11, 2002

 

CONFLICT OF INTEREST

 

EMPLOYEE COUNTY ATTORNEY FORMER PARTNER IN LAW FIRM CONTRACTING WITH COUNTY

 

To:       Name withheld at person's request

 

SUMMARY:

 

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were an employed county attorney to receive fees and profit-sharing from his former law firm which does business with the county under contracts entered into before he became county attorney.  Section 112.316, Florida Statutes, acts as a "grandfather" clause insulating him from the literal language of Section 112.313(7)(a).  CEO's 02-14, 94-35, 94-14, 94-3, and 92-48 are referenced.

 

QUESTION 1:

 

Would a prohibited conflict of interest be created were you, a full-time-employee county attorney, to receive a percentage of gross fees collected in the future by your former law firm on files you brought to the firm (not including files where the county is the client), where the firm provides legal services to the county under contracts entered into prior to your becoming county attorney?

 

This question is answered in the negative.

 

By your letter of inquiry, materials submitted with the letter, and additional information provided at your direction to our staff via e-mail, we are advised that you are employed full-time as the County Attorney for Orange County, assuming the position on October 28, 2002.^[1]  Additionally, you advise that previously you were a partner in a law firm that has served as task-specific legal counsel to the County for the past several years, via the services of firm members other than yourself; that you no longer have any rights or obligations related to the operation, control, and/or management of the firm; and that you have terminated your relationship with the firm, with the exception of an arrangement (currently verbal/unwritten, but which may be memorialized) between you^[2] and the firm under which you will be entitled to receive a percentage of future fees collected from clients you brought to the firm and a percentage of the firm's future profits for three years.

 

Further, we are advised that all of the legal services contracts between the firm and the County were entered into prior to your becoming County Attorney; that none of these contracts has changed since you became County Attorney; and that one of the contracts (a construction law contract) will expire in December 2002, but that it expressly provides that it may be renewed for two additional one-year periods.

 

Section 112.313(7)(a), Florida Statutes,^[3] 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 or she 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 or her private interests and the performance of his or her public duties, or that would impede the full and faithful discharge of his or her public duties.

 

The statute apparently would prohibit your holding a contractual relationship (i.e., the fee/profit-sharing arrangement) with the firm, inasmuch as the firm is a business entity doing business with the County by virtue of the various legal services agreements.  However, on numerous occasions, we have found that Section 112.313(7)(a) is not to be applied in isolation, but, rather, is to be construed in conjunction with Section 112.316, Florida Statutes, which provides:

 

CONSTRUCTION.--It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his or her duties to the state or the county, city, or other political subdivision of the state involved.

 

Thus, we have utilized Section 112.316 as a "grandfather" clause to negate the literal language of Section 112.313(7)(a), reasoning that a public officer cannot be tempted to dishonor regarding contracts between a private firm (with which he holds a contractual relationship) and his public agency entered into before he assumed his public position.  See, for example, CEO 02-14 and our opinions cited therein.

 

Therefore, in accord with our precedent, we find that Section 112.313(7)(a) would not be violated were you to receive a portion of fees and profits as set forth in Question 1.^[4]

 

QUESTION 2:

 

Would a prohibited conflict of interest be created were  you to receive a percentage of the firm's future net profits (for three years) which would include profits from fee payments received by the firm from the County?

 

This question also is answered in the negative.

 

Although you represent (via e-mail response) that the County Attorney's Office refers particular work to the firm on an "as needed" basis under the construction law contract and that billings by the firm for this work are reviewed by the County Attorney's Office, we do not find that this referral and review defeats the grandfathering of Section 112.316.  See CEO 92-48, in which we found that FDOT Bureau of Motor Carrier Compliance employees working privately for road-construction firms would not necessarily be tempted to disregard traffic laws or other standards in an effort to curry favor with their private employers.  See also CEO 94-3, CEO 94-14, and CEO 94-35.

 

This question is answered accordingly.

 

QUESTION 3:

 

Would a prohibited conflict of interest be created were you to receive a percentage of the firm's net profits for the next three years, excluding profits generated from fees received from the County?

 

In accord with our answers to Questions 1 and 2 above, this Question is answered in the negative.   

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 5, 2002 and RENDERED this 10th day of December, 2002.

 

 

 

__________________________

Patrick Neal

Chair