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
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.
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. 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 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, 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.
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.
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.
The letter of inquiry states that you assumed the position on October 21, 2002; however, your later e-mail corrects the representation to October 28, 2002.
You advise that you were a member of the firm and that you are party to the arrangement through a professional services corporation wholly owned by you.
Section 112.313(7)(a) is applicable to your inquiry because you are a public "employee." If you were merely an independent contractor, Section 112.313(7)(a) would not be applicable. See Section 112.313(16), Florida Statutes, which provides:
(16) LOCAL GOVERNMENT ATTORNEYS.--
(a) For the purposes of this section, >local government attorney= means any individual who routinely serves as the attorney for a unit of local government. The term shall not include any person who renders legal services to a unit of local government pursuant to contract limited to a specific issue or subject, to specific litigation, or to a specific administrative proceeding. For the purposes of this section, >unit of local government= includes, but is not limited to, municipalities, counties, and special districts.
(b) It shall not constitute a violation of subsection (3) or subsection (7) for a unit of local government to contract with a law firm, operating as either a partnership or a professional association, or in any combination thereof, or with a local government attorney who is a member of or is otherwise associated with the law firm, to provide any or all legal services to the unit of local government, so long as the local government attorney is not a full-time employee or member of the governing body of the unit of local government. However, the standards of conduct as provided in subsections (2), (4), (5), (6), and (8) shall apply to any person who serves as a local government attorney.
(c) No local government attorney or law firm in which the local government attorney is a member, partner, or employee shall represent a private individual or entity before the unit of local government to which the local government attorney provides legal services. A local government attorney whose contract with the unit of local government does not include provisions that authorize or mandate the use of the law firm of the local government attorney to complete legal services for the unit of local government shall not recommend or otherwise refer legal work to that attorney's law firm to be completed for the unit of local government.
We also find that contracts between the County and the firm entered into before you became County Attorney and containing express renewal language for time-certain periods can be renewed even though you hold the position of County Attorney at the time of the renewal(s), provided the provisions of the renewed contract remain the same as those of the original. See CEO 02-14 (school board member employed by investment banking firm marketing school district bonds).