CEO 76-144 -- July 26, 1976
CONFLICT OF INTEREST
COUNTY ATTORNEY PRIVATELY REPRESENTING COUNTY COMMISSIONER IN RE COMPLAINT FILED WITH COMMISSION ON ETHICS
To: (Name withheld at the person's request.)
The Code of Ethics prohibits a public officer from having a contractual relationship with a business entity doing business with his public agency. Fla. Stat. s. 112.313(7)(1975). The code further provides, however, that it is not the intent of the law to prevent a public officer or employee from following any pursuit which does not interfere with the full and faithful discharge of his public duties. Fla. Stat. s. 112.316(1975). Reading these two provisions in conjunction, no conflict of interest is deemed to be created where a county commissioner privately retains as legal counsel, at his own expense, one who also serves as county attorney. The commission feels that it must be chary in construing the Code of Ethics to prohibit a public officer from privately retaining the services of a private business entity for his private use, and that even greater caution is required where the contractual relationship involves the choice of private counsel to represent one against charges of misconduct.
No provision of the Code of Ethics relates to the attorney's acceptance of such representation. A county attorney's private representation of a county commissioner is a question of professional ethics which should be directed to The Florida Bar.
Would a prohibited conflict of interest be created were I, a county attorney, to represent in my private capacity a county commissioner against whom a complaint has been filed with the Commission on Ethics?
You advise us in your letter of inquiry that, as part of your private law practice, you represent the board of county commissioners in the capacity of county attorney. A county commissioner has asked that you privately represent him with regard to a complaint against him filed with the Commission on Ethics. You would be retained as the commissioner's private counsel at his personal expense. Your question is twofold in that you wish to know, in behalf of the commissioner, whether he would be in violation of the Code of Ethics by retaining you, and whether you as county attorney are prohibited from such private representation.
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 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. [Fla. Stat. s. 112.313(7)(a)(1975); emphasis supplied.]
The emphasized portion of this provision prohibits a public officer from having a contractual relationship with a business entity doing business with that public officer's agency. Accordingly, this provision would appear to prohibit a county commissioner from retaining as private counsel an attorney, who constitutes a business entity pursuant to the definition contained in s. 112.312(3), who serves as counsel for the board of county commissioners. However, s. 112.313(7) must be read in light of another provision of the Code of Ethics which provides as follows:
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 duties to the state or the county, city, or other political subdivision of the state involved. [Fla. Stat. s. 112.316 (1975).]
We believe that each standard of conduct must be read with the above-quoted qualification in mind. In our view, the private retention of the county attorney by a county commissioner does not interfere with the full and faithful discharge of that commissioner's public duties.
Section 112.316, quoted above, requires that this commission be chary in construing the Code of Ethics to prohibit a public officer or employee from privately retaining the services of a private business entity for his private use. Moreover, we believe it necessary to use even greater caution where the contractual relationship involves the choice of private counsel to represent one against charges of misconduct.
The Rules of the Florida Commission on Ethics, in Ch. 34-5, specifically provide that an alleged violator has the right to have an attorney represent him in proceedings before the commission. In our view, one charged with misconduct deserves the privilege of choosing counsel who he believes is best able to represent him in the matter. Given the factual situation before us, we believe the importance of this consideration far outweighs the possibility of conflict in such retention. We therefore hold that the subject county commissioner may retain you as his private counsel in the complaint before this body as such retention on his part should not interfere with the discharge of his public duties.
There is no provision in the Code of Ethics which relates to your situation, however. In our view, a county attorney's private representation of a county commissioner is a question of professional ethics, the answer to which appropriately lies with The Florida Bar.