CEO 81-61 -- September 17, 1981

CITY ATTORNEY

APPLICABILITY OF PROVISIONS OF CODE OF ETHICS FOR PUBLIC OFFICERS AND EMPLOYEES

To: Mr. David E. Cardwell, City Attorney, City of Lakeland

SUMMARY:

The Code of Ethics for Public Officers and Employees governs the conduct of public officers and employees, not the conduct of independent contractors with governmental entities. Where a law firm has been retained by a city as legal counsel, with the firm agreeing to provide one attorney to be designated as city attorney and to pay his salary, the city attorney is not a public employee. Nor is the city attorney a public officer in this instance. Therefore, the Code of Ethics would not prohibit the city attorney from being employed by a law firm, other members of which also provide legal services to the city.

QUESTION:

Are you, the City Attorney for the City of Lakeland, a public officer or public employee subject to the standards of conduct contained in the Code of Ethics for Public Officers and Employees, Part III, Chapter 112, Florida Statutes?

Your question is answered in the negative.

In your letter of inquiry you advise that in 1979 the law firm with which you are associated was retained by the City of Lakeland as legal counsel. Under the agreement with the City, you have been designated as the City Attorney, maintaining an office in the City Hall and performing the vast bulk of the City's legal work, including attendance at all City Commission meetings. Two other attorneys in the firm perform services for the City on an hourly-rate basis, one almost exclusively handling electric utility matters and the other handling condemnation and real property matters for the City. In your absence, one of these attorneys will attend City Commission meetings and handle any legal inquiries of a pressing nature. All three attorneys represent clients other than the City.

As City Attorney, you advise, you have been provided an office in City Hall as well as secretarial and logistical support from the City. The City compensates the firm for your services bi-weekly, and the firm in turn pays you a monthly salary. You do not participate in any City retirement or other benefits normally available to employees of the City, with the exception of health insurance, a benefit also available to City Commissioners. Taxes withheld from your monthly salary are withheld by the firm as your employer, and not by the City. In addition, the City pays the firm for certain expenses, such as malpractice insurance, which are billed to the City periodically.

In previous opinions we have advised that the standards of conduct contained in the Code of Ethics for Public Officers and Employees do not apply to a person whose relationship with a governmental entity is as an "independent contractor," rather than as a public officer or public employee. See, for example, CEO 77-60, CEO 77-76, CEO 78-65, and CEO 81-48. Based upon the circumstances you have presented and the principles we have followed in the above- cited opinions, we find that you are an employee of the law firm and not of the City. By way of contrast, we would reference the circumstances involved in opinions CEO 81-49 and 81-50, in which we found that the subject school board attorneys were clearly intended to be employees of school boards.

In some instances, a city attorney may be a public officer. For example, in AGO 069-3 the Attorney General advised that under Chapter 14591, Laws of Florida, 1929, as amended, the City Attorney of the City of Dade City appeared to be an officer of the City rather than an employee. This conclusion was based upon provisions in the Special Act which provided certain duties and responsibilities of the City Attorney. The Attorney General also considered the case of State ex. Rel. Holloway v. Sheats, 78 Fla. 583, 83 So. 508 (1919), in which the Florida Supreme Court stated: "The term 'office' embraces the idea of tenure, duration, and duties in exercising some portions of the sovereign power, conferred or defined by law and not by contract." Similarly, in AGO 070-13, the Attorney General advised that based upon the Charter of the City of South Daytona, the City Attorney's position constituted an office, as opposed to mere employment.

The Charter of the City of Lakeland provides in part:

The city commission shall appoint a city attorney who shall hold office at the pleasure of the city commission, and who shall act as the legal advisor to, and attorney and counselor for, the municipality and all its officers in matters relating to their official duties. [Div. 1, Section 25(a), City Charter.]

In addition, the Charter provides that the City Attorney is to prepare all contracts, bonds, and other instruments in writing, endorsing his approval or disapproval of the form and correctness of each; to represent the City in litigation when required to do so by the City Commission; to advise officers of the City on their powers and duties; to approve the form of all City ordinances; and to perform such other duties as might be required of him by ordinance or resolution of the City Commission. In addition, the Charter provides that the City Attorney shall maintain an office in the City Hall and that his compensation shall be fixed by the City Commission.

While the provisions of the City Charter might be interpreted as creating a "public office" of City Attorney, to be filled by the appointment of a "public officer," it is apparent that the City has not interpreted its Charter in this manner. Minutes of the City Commission meeting at which your law firm was retained by the City indicate that the City Commission voted to hire the law firm, with one full-time attorney being provided on the firm's payroll. Clearly, the City Commission did not "appoint" a single individual to the office of City Attorney. Rather, it appears that your duties and responsibilities, as well as those of the law firm, were fixed by the agreement between the firm and the City Commission, instead of by the provisions of the City Charter.

Under these circumstances, although the Charter may create an "office" of City Attorney, we cannot find you have been appointed to hold such an office. Accordingly, as we have found that you are not a public officer or employee, we find that you are not subject to the standards of conduct contained in the Code of Ethics for Public Officers and Employees, Part III, Chapter 112, Florida Statutes.