CEO 92-19 -- April 24, 1992

CONFLICT OF INTEREST

COUNTY ATTORNEY RECOMMENDING DEFENDING AGAINST A COURT'S

AWARD OF TAXABLE COSTS AGAINST THE COUNTY WHICH INCLUDES

THE COUNTY ATTORNEY'S SPOUSE'S FEE

To: Emeline C. Acton, County Attorney, Hillsborough County (Tampa)

SUMMARY:

No prohibited conflict of interest is created under the Code of Ethics for Public Officers and Employees for either a county attorney or an assistant county attorney to file a response or to appear in court on a matter involving taxable costs or to recommend a particular course of action to the Board of County Commissioners in a lawsuit involving taxable costs when the costs include the fees of the county attorney's spouse. Sections 112.313(3) and 112.313(4), Florida Statutes, are the only provisions of the Code of Ethics which specifically concern the interest or actions of the spouse of a local public employee. Under the circumstances presented, those sections do not apply. Although a policy of disclosing a spouse's interest in a matter about which a county attorney is making recommendations to the Board of County Commissioners is recommended in order to avoid the appearance of conflict of interest, the Code of Ethics does not require such disclosure when the public officer is not a member of the public body that will be voting on the matter.

QUESTION 1:

Would a prohibited conflict of interest be created were you, a County Attorney, or an Assistant County Attorney to file a response to or appear in court on a motion for taxable costs or to recommend a certain course of action to the Board of County Commissioners in a lawsuit involving taxable costs, when the costs include the witness fees of your spouse?

Your question is answered in the negative.

In your letter of inquiry and conversations with staff, you and your staff advised that you are the County Attorney ofHillsborough County. You advise that as part of your representation of the County, you have assigned an Assistant County Attorney to respond to motions for "taxable costs" filed by a criminal defendant's attorney pursuant to Chapter 939, Florida Statutes. You advise that under certain circumstances, such costs may be awarded when a defendant is acquitted or discharged.

You are concerned about your involvement in these cases because your spouse is a forensic psychiatrist who occasionally testifies in criminal cases, and his fees are included among the costs the defendants try to recoup. You advise that when your spouse testifies as an expert witness, he does so pursuant to a contract he has entered into with a defendant's private attorney which entitles him to payment of his fees whether or not the defendant is reimbursed by the County. When an individual is defended by the Public Defender, the County pays all proper costs; therefore, no reimbursement of fees is involved, and this question would not pertain. You also advise that, generally, you do not know when a case involves your spouse's fee, although the Assistant County Attorney assigned to handle the case may.

You advise that you recently have brought a case to the attention of the County Commission about which you particularly are concerned. In this case, the defendant, who was charged with murdering her child, was found not guilty by reason of insanity. You advise that because of the publicity generated by the case, you are aware that the defendant contracted with your spouse to testify as an expert in her trial. You advise that upon petition of the defendant for payment of "taxable costs," the Court, pursuant to Chapter 939, Florida Statutes, gave a certificate of the payment of such costs, thereby allowing her reimbursement of costs, from which order the State has appealed. You advise that the State is arguing on appeal that a judicial finding of not guilty by reason of insanity is neither an acquittal nor a discharge.

You advise that because the County is ultimately responsible for the payment of such costs, you wish to file an amicus brief also arguing that the defendant is not eligible to receive taxable costs. You advise that you disclosed your spouse's involvement in the case to the Board of County Commissioners when you sought its approval to participate in the appeal.

In CEO 86-5 and CEO 86-48, we advised that Sections 112.313(3) and 112.313(4), Florida Statutes, are the only provisions of the Code of Ethics which specifically concern a conflict of interest for local public officials and employees based upon a spouse's interests or actions. Those sections provide:

DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee of his 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 his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he 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. 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.

[Section 112.313(3), Florida Statutes (1991).]

UNAUTHORIZED COMPENSATION.--No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or with the exercise or reasonable care should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity. [Section 112.313(4), Florida Statutes (1991).]

Neither of these quoted provisions is applicable to the circumstances you have described. With respect to Section 112.313(3), it is clear that you are not acting in your official capacity, as a County Attorney, to purchase any services for the County from your spouse; nor would you be purchasing services for the County even if your office had not opposed the petition to assess costs. If paid by the County at all, your spouse's fee would be paid only as directed by the Court and pursuant to statute. With respect to Section 112.313(4), we have no reason to believe that payment of your spouse's expert witness fee was contingent upon any action or inaction on the part of the Office of the County Attorney. Such a contingency, apart from raising possible questions of misuse of position by you, would, in all likelihood, be violative of your spouse's professional code of conduct. We also have no reason to believe that any compensation that your spouse received for his expert testimony was given to influence any action in which you were expected to participate.

Three other provisions of the Code of Ethics of possible relevance are:

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. [Section 112.313(7)(a), Florida Statutes.]

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes.]

For purposes of this provision, the term "corruptly" is defined as follows:

'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(9), Florida Statutes (1991).]

Section 112.313(7)(a) prohibits you, a public employee, from having certain employment or contractual relationships. As we have not considered the marital relationship to constitute an "employment or contractual relationship" within the meaning of this prohibition, and as the statute by its terms addresses only employment or contractual relationships of the official, and not those of his or her spouse, we have advised that Section 112.313(7) does not apply to situations where a public official may be presented with a conflict of interest on the basis of the activities or interests of his or her spouse. See, for example, CEO 90-77, CEO 89-44, CEO 88-35, CEO 88-33, and CEO 87-50. This section limits the employment and contractual relationships of a public officer or employee and not those of his or her spouse. See also CEO 86-5, CEO 80-80, and CEO 80-20. Therefore, as long as you have no employment or contractual relationships with your spouse's business or practice, this section would not apply to you.

Finally, Section 112.313(6), Florida Statutes, prohibits you from using or attempting to use your official position to secure a special privilege, benefit, or exemption for yourself or others, where your actions are undertaken with a wrongful intent for the purpose of obtaining some benefit resulting from your actions which are inconsistent with the proper performance of public duties. We are generally reluctant to address this provision in the context of an advisory opinion because it necessitates an examination of intent. However, it is appropriate that we make you aware of this statute and caution you to let it guide your conduct.

Here, it would not appear that you are misusing your position by recommending that the County Commission challenge the assessment of "taxable costs" which it ultimately may be responsible for paying. To the contrary, it would appear to us that you are faithfully fulfilling your responsibilities. Whether or not the County is ultimately responsible for payment of his fee, there is little or no incentive for you to misuse your position. However, we suggest that you might wish to avoid even the appearance of a conflict of interest by retaining outside counsel to handle these cases. Assignment of an Assistant County Attorney might not be considered sufficient because of the authority that you have over them. See CEO 79-37 and CEO 80-26.

Accordingly, under the circumstances presented, we find that no prohibited conflict is created under the Code of Ethics for you or an Assistant County Attorney to file a response or appear in court on a motion for taxable costs, or even to recommend a particular course of action to the Board of County Commissioners in a lawsuit involving taxable costs, when such costs include the fees of your spouse.

QUESTION 2:

Does the Code of Ethics require you, a County Attorney, to disclose to the Board of County Commissioners your spouse's interest in a matter about which you are making a recommendation to the County Commission?

Question 2 is answered in the negative.

You advise that you disclosed to the Board of County Commissioners your spouse's involvement in the case being appealed, in which appeal you were recommending that the Board approve your office's participation. Although we recognize the propriety of your disclosure and we recommend that you continue to make such disclosures in cases where there may be the appearance of a conflict of interest, such disclosure is not required by the Code of Ethics.

Accordingly, under the circumstances that you have described, the Code of Ethics for Public Officers and Employees does not require you to disclose to the Board of County Commissioners your spouse's interest in a matter about which you are asking the Board to take action. For advice about the appropriate standards of conduct under the attorneys' Rules of Professional Conduct, please contact the Florida Bar.