CEO 99-14 -- October 27, 1999
CONFLICT OF INTEREST
TRI-COUNTY COMMUTER RAIL AUTHORITY MEMBER
PARTNER OF ATTORNEY WHO REPRESENTS AUTHORITY LESSEE
IN MATTERS BEFORE OTHER GOVERNMENTAL ENTITIES
To: Gary M. Brandenburg, General Counsel, Tri-County Commuter Rail Authority (West Palm Beach)
A prohibited conflict of interest would not be created under Section 112.313(7)(a), Florida Statutes, were a partner of a member of the Tri-County Commuter Rail Authority to represent a company developing property under an Authority lease, in matters not before the Authority. Under the facts of the situation, the member would not hold employment or a contractual relationship with a business entity either regulated by or doing business with the Authority; and due to the member=s partner=s representation of the company being before governmental entities other than the Authority, no frequently recurring conflict or impediment to the full and faithful discharge of public duty would be present. CEO’s 88-8 and 96-1 are referenced.
Would a prohibited conflict of interest be created under Section 112.313(7)(a), Florida Statutes, were a partner of a member of a rail authority=s governing board to represent a company doing business with the authority, in matters not before the authority?
Under the facts set forth in this opinion, your question is answered in the negative.
By your letter of inquiry, a letter to you from the public official in whose behalf you inquire, your written responses to questions from our staff, and an additional letter from you to our staff, we are advised that Wendy Larsen (Amember@) serves as a member of the governing board (ABoard@) of the Tri-County Commuter Rail Authority (ATCRA@), an appointive position, and that she is a partner in a planning and planning law consulting firm.
In addition, we are advised that the TCRA Board advertised and received responses from private entities to undertake a joint development project on a TCRA property located adjacent to the rail corridor in the municipal limits of the City of Boca Raton, that a selection committee of TCRA staff reviewed the proposals and recommended one company=s proposal as the best, that the Board confirmed the recommendation and instructed TCRA staff to negotiate a long-term lease with the company, and that a lease between the TCRA and the company was fully authorized and approved on September 3, 1999, at a special Board meeting (at which the member was not present), by unanimous vote of those present.
Further, we are advised that the request for proposals (ARFP@) required the successful proposer to obtain development approval from the City and, thus, that the company has approached a partner in the subject Board member=s firm about representing it in securing development approval from the City, due to his national recognition as an expert in planning and planning law and due to his experience representing applicants before the City. Additionally, we are advised that the company would not retain the member or the member=s firm. Also, it is emphasized that the representation of the company by the member=s partner will not involve representation before the TCRA, the representation being limited to securing City approval of the project, and that no matters which would affect the member=s partner are anticipated to come before the TCRA.
Further, we are advised that the lease is coupled with a conceptual plan that was approved upon authorization of the lease; that the member=s partner=s sole responsibility will be to work directly for the company in securing the land-use entitlements represented in the conceptual plan; that this work will occur before jurisdictions or governmental entities other than the TCRA; that the Board does not have any land-use jurisdiction over the leased property; and therefore that the Board will not be making any decisions and will not have any public duties with respect to the land-use entitlements which will ultimately be approved by jurisdictions or entities other than the Board. Further, you advise that it is anticipated that the land-use approval process will take at least fifteen months to complete; that if the company is successful in obtaining the land-use approvals shown on the conceptual plan the project will proceed without any further review by the Board; that if the company is approved for a lesser land-use entitlement than that shown on the conceptual plan, the company=s counsel (unrelated to the member=s firm or the member=s partner=s separate firm) who initially negotiated the TCRA lease will present a revised conceptual plan to the TCRA; that the member=s partner will not be involved in any revised conceptual plan presentation, as his function (obtaining zoning approvals from other governmental entities) will have been completed. Additionally, you advise that the occurrence of any future presentations to or decisions by the TCRA regarding the conceptual plan is merely speculative, as the land-use approvals may occur without alteration; that consideration of conceptual plan modifications, if it takes place at all, will occur at least fifteen months in the future; and that any such modification proposals would not involve the member=s partner in any way.
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.
Although in some respects your inquiry is factually similar to the situation present in CEO 88-8, our previous opinion arguably most similar to the situation you present, we find, for the reasons set forth below, that the TCRA member=s situation is distinguishable, and thus find that a prohibited conflict of interest would not be created under the second part of Section 112.313(7)(a) were the member=s partner to represent the company under the circumstances described.
In Question 2 of CEO 88-8 we stated in part:
You question whether a prohibited conflict of interest would be created were the Mayor=s law firm to be divided into two separate partnerships, with the partnership of which the Mayor is not a member representing clients doing business with or litigating against the City and the partnership of which the Mayor is a member representing clients in cases in which no conflicting relationship would exist. . . .
We note that under these circumstances the Mayor would have no direct financial interest in the law firm representing clients doing business with or litigating against the City. However, the question posed is not simply the question of whether a Mayor may be a partner in a law firm which shares space and expenses with another firm representing clients which are doing business with or litigating against the City. We cannot ignore the fact that all of the Mayor=s partners would be partners in the other firm. Thus, the Mayor would maintain an ongoing professional relationship with every partner in a firm which would be representing clients either before or against the City.
Although the form of the situation would change from that presented in your first question, as a matter of substance and appearance of a conflict we cannot conclude that the situations differ materially. In both situations, the Mayor would not directly and personally benefit from the conflicting representation. However, every partner of his law firm would benefit. The term >conflict of interest= is defined in Section 112.312[(8)], Florida Statutes, to mean >a situation in which regard for a private interest tends to lead to disregard of a public duty or interest.= In either case, the Mayor as the chief elected officer of the City would be confronted with matters involving clients of all of the partners of his law firm. While we do not mean to imply that the Mayor would be incapable of placing the City=s interest above those of his law partners, the prohibition of Section 112.313(7)(a) is directed at employment and contractual relationships which coincide with a public officer=s duties to create a situation which >tempts dishonor.= See Zerw[e]ck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982). In summary, we see no way to distinguish the interests, obligations, and appearances of this situation from that posed in your first question.
Such Asubstance over form@ reasoning is applicable to anchor a finding of conflict in situations in which the interests of a client of an official=s partner are before or are likely to come before the member=s public agency and in which the official=s partner negotiates or participates in matters before the official=s public agency. However, such is not the case in the scenario you present, a situation in which the partner did not negotiate the lease between the company and the TCRA, in which the partner=s work for the company will be before governmental entities other than the TCRA, and in which further TCRA action affecting the partner=s client, if it occurs at all, will happen at least fifteen months in the future and will not be advocated or participated in by the partner.
In addition, we are of the opinion that the reasons underlying our finding of a prohibited conflict under the second part of Section 112.313(7)(a) in CEO 96-1, Question 1, are not present in the member=s situation. There, we concluded that an electric authority board member=s Aof counsel@ relationship with a law firm was prohibited because the firm represented clients in matters before the authority. Under your inquiry, the member=s partner is not representing the company in matters before the TCRA (rather, he is representing the company before other governmental entities), he did not represent the company before the TCRA, and he will not represent the company in any future matters before the TCRA.
Accordingly, under the facts recited in this opinion, we find that a prohibited conflict of interest would not be created under Section 112.313(7)(a), Florida Statutes, were the TCRA Board member=s partner to represent a company developing a project through a lease with the TCRA, in matters not before the TCRA.
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 21, 1999 and RENDERED this 27th day of October, 1999.
Peter M. Dunbar
We are advised that the project will include approximately three hundred residential units, a small hotel, one hundred thousand square feet of office space, a relatively small compliment of commercial uses, the Tri-Rail Station, and required parking for all uses; that the project will require approvals from the City either as a development of regional impact or by way of amendments to the City=s land development regulations and master plan approval; that the applications for development approval would be considered by the City=s Planning Advisory Committee, its Community Appearance Board, its Planning and Zoning Board, and the City Council; and that the project=s potential impact on the community is not considered to be large or extreme.
In addition, you advise that all lease negotiations between TCRA and the company were handled by a law firm other than the member=s firm and other than the separate firm of the member=s partner, that you anticipate that any future contact or negotiations between the TCRA staff or the TCRA Board in behalf of the company will be handled by the same unrelated law firm, that the member=s partner did not participate in any lease negotiations, that the member=s partner has not interfaced with the TCRA Board or the TCRA staff in any way whatsoever regarding the lease, and that he will not so interface with the Board or its staff in the future.
We note that the member did not attend or participate in the meeting at which the lease approval took place.