CONFLICT OF INTEREST
COUNTY COMMISSION CANDIDATE'S LAW FIRM SERVING AS SPECIAL
COUNSEL TO MUNICIPALITY LOCATED WITHIN THE COUNTY
To: Mark Herron, Esquire (Tallahassee)
SUMMARY:
A prohibited conflict of interest would not be created under Section 112.313(7)(a), Florida Statutes, were the law firm of a candidate for the county commission to continue to serve as special counsel to a municipality located within the county, if the candidate is elected and takes office, even though the county and the municipality have an ongoing dispute over the expansion of an airport and its impact on the municipality and its citizens. The municipality is not "regulated" by the county, and an interlocal agreement between the county and the city does not constitute "doing business" for purposes of Section 112.313(7)(a), Florida Statutes. Moreover, the situation does not create a continuing or frequently recurring conflict or impediment to duty under the second part of Section 112.313(7)(a), Florida Statutes, since the airport expansion is a unique situation and since neither the candidate nor his law firm have had any involvement in the city's dispute with the county. CEO 12-12, CEO 99-9, CEO 96-20, CEO 95-5, CEO 93-33, CEO 92-39, CEO 91-74, and CEO 83-5 are referenced.
QUESTION:
Does the representation of a municipality by the law firm of a county commissioner create a prohibited conflict of interest?
Under the circumstances presented, your question is answered in the negative.
You write that this opinion is sought on behalf of your client, Tim Ryan, who is a candidate for the Broward County Commission. You relate that your client is a partner in a law firm that has, since 1986, served as special counsel to the City of Dania Beach (located in Broward County). The firm represents the City in the areas of municipal prosecution, code enforcement, prosecution and defense of lien foreclosures, and real estate transactions (primarily involving the disposal of surplus property owned by the City). Further, you write that the City has a long-running dispute with the County over the expansion of the Fort Lauderdale-Hollywood International Airport. There is litigation between the City and the County concerning a dredge and fill permit issued by the U. S. Army Corps of Engineers for expansion of the airport's south runway, and there are also issues involving an interlocal agreement between the City and the County regarding noise mitigation and monetary compensation due to City homeowners affected by the expansion of the airport. However, you advise that the law firm is not representing the City in any capacity with respect to the airport expansion. You question whether a prohibited conflict of interest would be created for your client under these circumstances if he is elected to the County Commission and his firm continues to provide legal services to the City.
The applicable statute—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.
This statute has two parts; the first part prohibits a public officer from having a contractual relationship with an agency, or with a business entity, that is regulated by, or that is doing business with, his agency, and the second part prohibits contractual relationships that will create a continuing or frequently recurring conflict between the officer's private interests (e.g., interests of his firm or its clients) and the performance of his public duties, or that would impede the full and faithful discharge of his public duties.
We find that a prohibited conflict of interest would not be created under the first part of Section 112.313(7)(a) because there is no indication that the City, the agency with which your client/his firm has a contractual relationship, is subject to the regulation of the County. Counties do not "regulate" municipalities. See Art. VIII, Fla. Const., which sets forth the establishment and duties of counties and municipalities. Neither have we found that intergovernmental agreements constitute "doing business" for purposes of Section 112.313(7)(a). See CEO 95-5, where we concluded that a county commissioner's employment as a city fire marshal did not violate the first part of Section 112.313(7)(a), notwithstanding an interlocal agreement governing the provision of fire protection services. See also CEO 96-20, CEO 93-33, CEO 92-39, and CEO 83-5. Thus, our focus shifts to whether the candidate's law firm's ongoing representation of the City as special counsel in matters other than the airport expansion would create a conflict under the second part of the statute.
In Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982), the District Court of Appeal stated that this prohibition
establishes an objective standard which requires an examination of the nature and extent of the public officer's duties together with a review of his private employment to determine whether the two are compatible, separate, and distinct or whether they coincide to create a situation which "tempts dishonor." [409 So. 2d at 61.]
Also, the Code of Ethics defines "conflict" as
a situation in which regard for a private interest tends to lead to disregard of a public duty or interest.
In CEO 99-9, we opined that a school board member would not violate this part of Section 112.313(7)(a) were she to become "of counsel" to a law firm handling a civil rights law suit against the school district. Our opinion there was grounded in the posture of the law suit at the time (it was nearly over), the unlikeliness of future law suits against the board brought by the law firm, and the school board member's lack of participation in the litigation. Similar considerations are present here inasmuch as the airport's expansion and its impact on the City is a unique situation, and neither the candidate nor his law firm have had or are expected to have any involvement in the City's dispute with the County over the expansion.
We also recognize that there may be some who have concerns that the candidate would lack objectivity or be biased in favor of the City due to his long-time representation of it. In CEO 12-12, we concluded that a county commission candidate, should he be elected and take office, could not be simultaneously employed by the county sheriff's office, given the role of county commissions in approving, amending, modifying, increasing, reducing, or scrutinizing budgets or proposed budgets of sheriff's offices. However, we do not believe that those concerns are present here as the County Commission does not exercise that type of authority over municipalities. Thus, it is our view that your client's continued representation of the City as special counsel would not create a prohibited conflict of interest under the second part of the statute should he be elected and take office as a County Commissioner. A similar conclusion was reached in CEO 91-74, where we concluded that the law firm of a county commissioner could represent a community development district after its establishment without violating Section 112.313(7)(a), Florida Statutes, due to the limited and infrequent nature of the community development district's interface with the county commission.
Accordingly, we find that a prohibited conflict of interest would not be created were the law firm of a county commissioner to serve as special counsel to a municipality located within the county.
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 19, 2012 and RENDERED this 24th day of October, 2012.
____________________________________
Susan Horovitz Maurer, Chair