CEO 97-11 -- April 17, 1997

CONFLICT OF INTEREST

COUNTY COMMISSIONER REPRESENTING INDIGENT CRIMINAL

DEFENDANTS FOR LAW FIRM THAT HAS CONTRACTED WITH

THE COUNTY TO PROVIDE REPRESENTATION IN CASES

WHERE THE PUBLIC DEFENDER HAS A CONFLICT

To: John D. Bruhn, St. Lucie County Board of County Commissioners (Fort Pierce)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a County Commissioner to continue to accept the assignment of non-capital indigent criminal cases from a law firm which has a contract with the County to handle Public Defender conflict cases for an established flat fee. Because the law firm's contract with the County predated the County Commissioner's taking office, and because the County Commissioner would not have been tempted to compromise the performance of his public duties in favor of his private interests regarding an agreement with his agency, the County Commission, when he held no public office at the time of the agreement and extension of the agreement and, therefore, had no public duties to carry out or be tempted to compromise, Section 112.316, Florida Statutes, has the effect of "grandfathering-in" the contract. CEO's 88-29 and 94-8 are referenced.

In addition, no violation of Section 112.313(7)(a) would be created by the County Commissioner's continuing to have a contractual relationship with the law firm even after contract amendments, which would have the effect of upwardly adjusting the amount of the attorney's fees to be paid, as set forth in the contract, or extensions of the contract, are presented to the County Commission for approval, as long as the terms of the contract remain substantially the same. CEO's 85-40 and 96-31 are referenced.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit you, a recently elected County Commissioner, from continuing to contract with a law firm which has contracted with the County to represent indigent defendants when the Public Defender has a conflict from representing "overflow" defendants that the law firm cannot represent?

Under the circumstances present, your question is answered in the negative.

In your letter of inquiry, you ask whether the Code of Ethics for Public Officers and Employees prohibits you from representing indigent defendants in non-capital criminal cases where the County is responsible for reimbursing the attorney for fees incurred in representing the indigent defendant.

In your letter and response to Commission staff's questions, you advise that you currently serve as a member of the St. Lucie County Board of County Commissioners, having been first elected on November 5, 1996 and sworn in to office on November 19, 1996. You also practice as a criminal defense attorney and represent indigent criminal defendants when the Public Defender is precluded from providing representation due to a conflict of interest, you advise.

You write that the County has a contract with a law firm with which you are not associated as a partner, associate, or employee. The contract between the law firm and the County, which was first entered into on December 21, 1992, prior to your taking office, resulted from the issuance of a request for proposals by the County, you advise. Through the agreement, the law firm agrees to represent indigent criminal defendants in conflict cases at an established flat fee for each felony and misdemeanor case it handles. The agreement also provides that the fee will be upwardly adjusted each year in a percentage amount equal to the annualized consumer price index, as published in the Wall Street Journal thirty (30) days prior to the expiration of each year of the contract period. However, in order to be effective, the fee increase also must be authorized by contract amendment. You advise that the contract, with the approval of the County Commission, was continued on November 5, 1995.

You advise that the law firm is the only one that contracts with the County to provide this conflict representation. However, the contract also provides that the law firm assumes full responsibility for furnishing associate counsel whenever the law firm is unavailable to provide "daily representation" in the conflict cases. The contract permits the law firm to delegate or assign its rights and obligations to competent and qualified attorneys, provided the attorneys receive prior approval from the Chief Judge of the Nineteenth Judicial Circuit and the County Attorney to take such assignments and provided the attorneys who accept such assignments are bound by the terms of the agreement. The contract also requires the law firm to maintain a list of at least five (5) competent and qualified attorneys, approved by the Chief Judge and the County Attorney, who can accept case assignments under the terms of the contract. In other words, after the Court first determines that the Public Defender has a conflict of interest which precludes him or her from representing the indigent defendant, it appoints the law firm to represent the indigent defendant. The contract then provides that if the law firm is unable to provide the representation, one of the five attorneys or law firms is appointed to represent the defendant.

You advise that there are a total of five (5) law firms, including your own, which receive conflict cases through a rotation system on "an even basis" from the law firm. You advise that you have had an oral agreement with the partners of the law firm since 1992 to represent any "overflow" of defendants that the law firm cannot accommodate. Legal expenses incurred as a result of your representation, you write, are billed to the County through the law firm. The County then remunerates the law firm which, in turn, remits payment to the lawyer who provided the conflict representation, you advise. You advise that you are paid a flat rate of $810.00 for each felony case and $387.00 for each misdemeanor case that you handle. Consequently, notwithstanding your claim that each of the five (5) law firms which accept cases was selected by the law firm, we must also assume that each of the five (5) law firms, including yours, was approved to accept assignment of cases by the Chief Judge and the County Attorney, and that you, as an assignee, are subject to all of the terms of the contract, including having your case files audited by the County. Relevant to your inquiry are the following provisions of the Code of Ethics:

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, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, County, or other political subdivision of the state; 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. [Section 112.313(7)(a), Florida Statutes.]

VOTING CONFLICTS.--No county, municipal, or other local public officer shall vote in an official capacity upon any measure which inures to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom the officer is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(3); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143(3)(a), Florida Statutes.]

Unless one of the exemptions of Section 112.313(12), Florida Statutes, applies, Section 112.313(7)(a) prohibits you from having any contractual relationship with a business entity which is doing business with or is subject to the regulation of your agency or which creates a continuing or frequently recurring conflict between your private interests and the performance of your public duties or an impediment to the full and faithful discharge of your public duties. For purposes of Section 112.313(7)(a), the phrase "conflict of interest" is defined in the Code of Ethics to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty of interest." Section 112.312(8), Florida Statutes.

At first glance, it appears that you have a contractual relationship with a "business entity," as that term is defined at Section 112.312(5), Florida Statutes, which is doing business with the County Commission contrary to the prohibition of the first part of Section 112.313(7)(a). In addition, by virtue of the fact that the County Attorney, who we assume for purposes of this analysis is directly subordinate to the County Commission, was required by the contract to approve you as one of the attorneys or lawyers to which the law firm could assign "overflow" cases, we believe that a possible second part of Section 112.313(7)(a) conflict may also exist, that is, an impediment to the full and faithful discharge of your public duties to objectively evaluate the County Attorney's work for the County as a result of his or her approval of you to handle cases for which you are or will be receiving remuneration indirectly through the County.

Although you initially indicated that the law firm's contract with the County was obtained through a bid process and awarded to the lowest bidder, so that the exemption of Section 112.313(12)(b), Florida Statutes, would have been applicable to negate any Section 112.313(7)(a) prohibition, upon further inquiry we have been informed that the County's contract with the law firm was obtained through a request for proposal (RFP) process, rather than a "sealed, competitive bid process." While we also have been informed that the RFP included instructions requiring a "sealed bid process," which we assume means that the RFP's were sealed when submitted, we find that this is not the same as the "sealed, competitive bid process" contemplated by Section 112.313(12)(b). Therefore, we find that under the circumstances presented, the exemption does not apply here.

However, we are of the opinion that Section 112.316, Florida Statutes, does apply to negate any possible conflict. Section 112.316 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 or her duties to the state or the county city, or other political subdivision of the state involved. [Section 112.316, Florida Statutes.]

This provision mandates that the Code of Ethics not be construed to prohibit a public officer from engaging in private pursuits which do not interfere with the full and faithful discharge of his or her public duties.

We have applied Section 112.316 as a "grandfather clause" to negate conflicts in situations in which the business or contract between the public agency and the private entity was entered into prior to the public official taking office. See, for example CEO 88-29 and CEO 94-8. Such a use of Section 112.316 is based upon the reasoning that a public official could not have been tempted to compromise the performance of his or her public duties in favor of his or her private interests regarding an agreement with his or her public agency when he or she held no public office at the time of the agreement and, therefore, had no public duties to carry out or be tempted to compromise. Consequently, we find that because the agreement and the renewal of the agreement between the law firm and the County predated your taking office, Section 112.316 applies to negate the existence of a conflict created by your contractual relationship with the law firm, regardless of whether your contractual relationship with the law firm is a continuing one or one that exists only for the period that you are representing a particular defendant.

Furthermore, we also are of the opinion that no violation of Section 112.313(7)(a) would be created by your continuing to have a contractual relationship with the law firm even after contract amendments, which would have the effect of upwardly adjusting the amount of the attorney's fee to be paid, as set forth in the contract, or extensions of the contact are presented to the County Commission for approval, as long as the terms of the contract remain substantially the same.

For example, in CEO 85-40 we found that no prohibited conflict of interest would be created were an officer of a bank doing business with a city as bond trustee and through a banking services agreement to be appointed to serve on the city council, as the relationship between the bank and the city would be "grandfathered in." We also noted in CEO 85-40 that because future extensions of credit were contemplated by the banking services agreement, the city could continue to take advantage of its line of credit with the bank even after the bank officer was appointed to the City Council, although the bank officer would be prohibited by Section 112.3143, Florida Statutes, from voting on the future extensions of credit. We also found that since the two-year banking services agreement contemplated a one-year extension by written consent of the city and the bank, an extension of the agreement also would be "grandfathered-in," although the bank officer would be prohibited from voting on such an extension. However, we opined that expiration or renegotiation of the banking services agreement, where the terms are substantially different than the original agreement, would bring into play the prohibitions of Sections 112.313(3) and 112.313(7)(a), Florida Statutes. See also CEO 76-118 where we observed

As the essential purpose of s. 112.313(7) is to prevent a public officer from using his official position to secure business for his private employer, no conflict of interest is deemed to exist while the contract is in its executory stage, so long as the annual renegotiation of terms remains substantially the same as those in the original contract.

Similarly, in CEO 96-31, we found that where the terms of a lease agreement between a city and a corporation in which a city council member owned a substantial interest and which was an assignee lessee remain the same, the lease agreement is "grandfathered-in." We found that the situation was not one where the City Councilman was using his official position to secure either business or an advantage or benefit for the assignee company through the use of his public position. Rather, the agreement between the City and the assignee lessee would remain essentially the same.

Although we find that no conflict of interest under Section 112.313(7)(a) is created as a result of the your accepting non-capital criminal cases from the law firm, we also are of the opinion that Section 112.3143(3)(a) prohibits you from voting either on the County's approving contract amendments granting upward adjustments to the attorney's fees paid to the law firm or to the County's approval of an extension of the contract with the law firm. Section 112.3143(3)(a) prohibits you from voting on a matter which would inure to your special private gain or loss, to the special private gain or loss of a principal by whom you are retained, or to the special gain or loss of your relative or business associate. It also contains an affirmative duty of disclosure so that interested parties and the public will understand why you are abstaining from voting. Inasmuch as the County's approval of a contract amendment or extension of the contract would appear to inure to your special gain or loss, you would be prohibited from voting on contract amendment or the extension of the contract. You also should file your memorandum of voting conflict (CE Form 8B) within 15 days after the vote occurs.

Accordingly, we find that no prohibited conflict of interest would be created under Section 112.313(7)(a) by your continuing to accept the assignment of non-capital indigent criminal cases from a law firm which has a contract with the County to handle Public Defender conflict cases for an established flat fee. However, we also must caution you about Section 112.313(6), Florida Statutes, which prohibits you from using or attempting to use your position, as County Commissioner, or resources within your trust, to secure a special privilege or benefit, where your actions are taken with wrongful intent for the purpose of obtaining a benefit for yourself or another and are inconsistent with the proper performance of your public duties. In order to avoid a possible charge of misuse of position, we suggest that you not interfere with the County's enforcement of the terms of its contract with the law firm, which appear to be equally applicable to you as an assignee under the contract. For example, should the County wish to audit either the law firm's or your records, or should an evaluation of the work being performed under the contract be undertaken by the County Attorney, you should not use your position to interfere in the process.

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 17, 1997, and RENDERED this 21st day of April, 1997.

_____________________________

Mary Alice Phelan

Chair