CEO 02-6 -- March 19, 2002

 

CONFLICT OF INTEREST; VOTING CONFLICT

 

COUNTY COMMISSIONER ATTORNEY REPRESENTING INDIGENT CRIMINAL

DEFENDANTS AS COURT-APPOINTED DEFENSE COUNSEL

 

To:       Name withheld at person's request

 

SUMMARY:

 

No prohibited conflict of interest would be created under Sections 112.313(3) or 112.313(7)(a), Florida Statutes, were an attorney to continue to be appointed by the court to represent indigent criminal defendants after he becomes a county commissioner.  Under the particular facts of this inquiry, the court (and not the county commission) has the paramount role regarding attorney appointment and fee payment, supporting the application of Section 112.316, Florida Statutes, to negate the literal language of the prohibitions.  However, the attorney/commissioner must comply with the voting conflicts law codified at Section 112.3143(3)(a), Florida Statutes, regarding any measure (including any measure affecting court-appointed defense counsel) which would inure to his special private gain or loss.  CEO's 97-11, 92-43, 88-29, 82-22, and 76-38 are referenced.

 

QUESTION:

 

Would a prohibited conflict of interest be created were a county commissioner who also is an attorney to be appointed by the court to represent indigent criminal defendants at county expense?

 

Under the particular circumstances of your inquiry, this question is answered in the negative.

 

By your letter of inquiry, a telephone conversation between you and our staff, and additional correspondence between you and our staff, we are advised that you are inquiring in behalf of . . .  (Attorney), a sole practitioner who is contemplating running for a seat on the Seminole County Commission.[1]  In addition, you advise that a significant portion of the Attorney's practice involves criminal defense as a Court-appointed special public defender (specially appointed defense counsel or SADC).[2]  Further, you advise that the Attorney is not a contract special public defender[3] but, rather, that he serves only on a case-by-case basis when appointed by the Court and that his obligation as a lawyer is to his client and the Court.  Additionally, you advise that the Attorney's fees as a SADC are paid from funds appropriated by the County Commission,[4] but that he is not under contract with the County to provide indigent representation services and is not subject to the supervision or control of the County in carrying out the representations.[5]  Also, you emphasize that neither the County Attorney, the County Commission, nor any person or entity (other than the Court) approves the Attorney's appointment as a SADC, approves SADC fees applied for by the Attorney and approved by the Court, or approves the fee schedule for SADC; that the hourly rate for SADC is established by an administrative order entered by the Chief Judge of the Judicial Circuit; that to serve as a SADC the Attorney does not contract with the County or with any law firm or other business entity that contracts with the County; and that the structure and criteria under which the Attorney is appointed to SADC cases is not expected to change or to be revisited should the Attorney take office as a County Commissioner.[6]

 

The Code of Ethics for Public Officers and Employees provides in 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 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. [Section 112.313(7)(a), Florida Statutes.]

 

In CEO 97-11, we considered a situation very similar to that of the Attorney in whose behalf you inquire and determined that a conflict of interest would not be created under Section 112.313(7)(a) were a county commissioner to accept the assignment of indigent criminal cases from a law firm which held a contract with the county to handle Public Defender conflict cases.  In the opinion, we applied Section 112.316, Florida Statutes, to negate the literal language of Section 112.313(7)(a), reasoning that inasmuch as the relationship between the law firm and the county predated the commissioner's taking office, he could not have been tempted to disregard the objective performance of his public duties in regard to it.[7]  See also CEO 88-29.

 

Similarly, we are persuaded that the situation you describe has been sufficiently "institutionalized" such that Section 112.316 applies to negate any conflict arising from the literal language of Section 112.313(7)(a).[8]  The paramount role of the Court (certainly an agency distinct from and not under the control of the County Commission) coupled with the minor, ministerial, or nearly non-existent role of the County or County personnel, regarding the selection and compensation of SADC, roles which were set prior to any membership of the Attorney on the County Commission, support the application of Section 112.316.  Section 112.316 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.

 

Accordingly, under the scenario set forth herein, we find that no prohibited conflict of interest would be created under Section 112.313(3) or Section 112.313(7)(a), Florida Statutes, by the Attorney's continuing to accept specially appointed defense counsel cases if he becomes a County Commissioner.[9]

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 14, 2002 and RENDERED this 19th day of March, 2002.

 

 

_______________________________________

Ronald S. Spencer, Jr., Chair

 

 


[1]Currently, you advise, the Attorney is the elected Mayor of the City of Lake Mary.

[2]You advise that the Attorney is not the only lawyer who serves in a SADC capacity in Seminole County.

[3]Contract special public defenders are law firms that contract with counties to provide representation of indigent criminal defendants who cannot be represented by the governmental Office of the Public Defender because of conflicts (e.g., adverse codefendant, Public Defender's simultaneous representation of alleged victim) arising under the Rules of Professional Conduct applicable to members of The Florida Bar.

[4]You advise that Section 43.28, Florida Statutes, mandates the County's funding of SADC for indigent criminal defendants.  Section 43.28 provides:

The counties shall provide appropriate courtrooms, facilities, equipment, and, unless provided by the state, personnel necessary to operate the circuit and county courts.

[5]You describe SADC appointment and fee payment as follows: 

1)             The Court determines that a particular criminal defendant is entitled to the appointment of a public defender.

2)             Either because the case is a juvenile dependency case, where there is no Public Defender, or because the case has multiple co-defendants and the Public Defender and the contracted special public defenders have a conflict of interest, the Court appoints a private attorney to serve as specially appointed defense counsel.

3)             If [the Attorney] has been appointed as specially appointed defense counsel, upon completion of his service, he files a motion with the Court seeking payment of his fees.

4)             If the Court approves the fee, an order is entered by the Court awarding a fee.

5)             The court administrator forwards the Order to the County Finance Department, where the fee is paid as a ministerial act of that department. 

[6]You advise that the only possible change, given the current system, would be a decision by the County Commission to eliminate all SADC's and solely use full-time contract public defenders.  If such a change were proposed, you relate that the Attorney would recuse himself from voting on the elimination measure and that he would be precluded from contracting with the County as a contract public defender.

[7]In CEO 97-11, we also found that no violation of Section 112.313(7)(a) would be created by the attorney/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 fee to be paid, as set forth in the contract, or even after extensions of the contract were presented to the county commission for approval, as long as the terms of the contract remained substantially the same.

[8]Unlike the situation present in CEO 97-11, the Attorney's scenario also raises the issue of whether he would be selling legal services to the County (his political subdivision as a County Commissioner) contrary to Section 112.313(3), Florida Statutes.  See CEO 82-22.  Assuming arguendo that the Attorney would be selling services to the County (via his delivery of personal legal services to individual human defendants under an appointment and fee-payment scheme nearly exclusively controlled by the Circuit Court), we are persuaded that the literal language of Section 112.313(3) also must yield to the reasoning of Section 112.316, given the Agrandfathering@ of paragraph (b) and the nearly nonexistent role of the County Commission regarding SADC.  See CEO 76-38 in which we applied Section 112.316 to negate Section 112.313(3).  Section 112.313(3) provides:

 

 DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's spouse or child, or any combination of them, has a material interest.  Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision of any agency thereof, if he or she is serving as an officer or employee of that political subdivision.  The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business or when such offices are on property wholly or partially owned by the legislator.  This subsection shall not affect or be construed to prohibit contracts entered into prior to:

  (a)  October 1, 1975.

  (b)  Qualification for elective office.

  (c) Appointment to public office.

  (d)  Beginning public employment.

[9]Should he become a County Commissioner, the Attorney must be mindful of the voting conflicts law [Section 112.3143(3)(a), Florida Statutes] and take care that he follows its requirements of declaration, abstention from voting, and filing of CE Form 8B regarding any County Commission measures which would inure to his special private gain or loss or to that of other persons or entities listed in the law (including, but not limited to, measures affecting him as a SADC).  We note that a vote on the County's budget as a whole (which funds many matters, including SADC), as opposed to a vote on a more limited measure dealing with SADC, will not trigger application of the voting conflicts law.  See CEO 92-43.