CEO 92-16 -- April 24, 1992

CONFLICT OF INTEREST

COUNTY CODE AND ZONING HEARING OFFICER REPRESENTING CLIENT IN APPEAL OF DECISION OF COUNTY'S CONSUMER PROTECTION BOARD

To: (Name withheld at the person's request.)

SUMMARY:

No prohibited conflict of interest is created under Section 112.313(7)(a), Florida Statutes, if an attorney in private practice who has been appointed by and has contracted directly with the County Commission to be a Hearing Officer on behalf of the County's Code and Zoning Enforcement Board in Code and Zoning violation cases continues to represent his client in the Circuit Court on an appeal from a decision of the County's Consumer Protection Board. The client, by virtue of either his involvement in the hearing process or his actions being restricted by the Consumer Protection Board, is regulated by the Consumer Protection Board rather than by the attorney's agency, the Board of County Commissioners. Under the circumstances described and the conditions set forth in the opinion, the continued representation of his client would not create a continuing or frequently recurring conflict of interest or impede the full and faithful discharge of his public duties as a Hearing Officer.

QUESTION:

Would a prohibited conflict of interest be created were you, an attorney in private practice who was selected by and contracted with the County Commission to serve as a Hearing Officer on behalf of the County's Code and Zoning Enforcement Board, to continue to represent a client in the Circuit Court on an appeal from a decision of the County's Consumer Protection Board?

Your question is answered in the negative.

Through your letter of inquiry, attached materials, and a conversation with staff, you and the Office of the County Attorney advise that you are an attorney with a private practice who was selected by the County Commission to serve as a Hearing Officer on behalf of the County Code and Zoning Enforcement Board; you have contracted directly with the Board of County Commissioners to serve in that capacity. You advise that you hear cases alleging violations of Chapter 39 (zoning), Broward County Code, and of the South Florida Building Code. You advise that your job as a hearing officer is to determine whether a violation existed at the date of issuance of the citation and, if there was, to assess a penalty. We are advised that your orders are final; they are not reviewed by the County Commission prior to their issuance or prior to their having final agency action effect. You relate that you do not advise the Zoning and Code Enforcement Division or any other division or department of Broward County Government.

You also advise that you represent a client who has taken an appeal to the Circuit Court from a decision of the Broward County Consumer Protection Board, which is a board created by the County. The case on appeal involves a section of the Broward County Code related to advertising by unlicensed contractors and the validity of an order entered by the Board. The Consumer Protection Board, which also enters final agency orders, falls under the jurisdiction of the Public Services Department, while the Zoning and Code Enforcement Division falls within the jurisdiction of the County's Health and Public Safety Department. All of your activity on behalf of your client since your selection as a Hearing Officer has been limited to appearances in the Circuit Court for the appeal, and all proceedings before the Consumer Protection Board terminated well before your selection as a Hearing Officer.

You advise that prior to beginning your duties as a Hearing Officer, you discussed the appeal and your role in it with an Assistant County Attorney, who, you have reason to believe, discussed it with the County Attorney. You advise that the Office of the County Attorney, with full knowledge of your appeal, consented to your selection as a Hearing Officer. You also advise that you discussed your role as a Hearing Officer with your client.

Finally, you advise that you have not represented or solicited any other clients with claims or appeals involving the County, and your representation of this client predates your selection as a Hearing Officer. Your client is not being represented for a fee or commission, and you will not be charging a fee, commission, or equivalent arrangement for your work.

You are concerned because a suggestion has been made that your representation of a client before the Consumer Protection Board and in Circuit Court, coupled with your duties as a Hearing Officer, may constitute an appearance of conflict which is substantial or sufficiently direct to be prohibited by Section 112.313(7)(a), Florida Statutes, which provides in relevant 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 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.

First, this provision prohibits you from having a contractual or employment relationship with a business entity or agency which is doing business with, or is regulated by, your agency. For purposes of this provision, the term "agency" is defined in Section 112.312(2), Florida Statutes, to mean "any . . . county . . . government entity of the state . . .; any department, division, bureau . . . therein."

Because you have contracted with the Board of County Commissioners to be a Hearing Officer, your "agency" is the County Commission, whereas your client is regulated by the Broward County Consumer Protection Board, which, pursuant to Section 112.313(2), Florida Statutes, is a separate "agency." We previously have stated that as long as a client is involved in a hearing process before a panel of the Consumer Protection Board, or his future action is restricted by an order entered by such panel, that client is subject to the regulation of the Consumer Protection Board. We also have said that only when the matter has been concluded, so that the Board or County need not take any further action to ensure compliance, is the client no longer "regulated" by the Board within the meaning of Section 112.313(7)(a). See CEO 89-39. Thus, we find that the first part of Section 112.313(7)(a) does not apply to prohibit your representation of your client because your contractual relationship with your client, whom we assume is a "business entity" pursuant to Section 112.312(5), Florida Statutes (1991), is not regulated by your agency. If, as your client's case stands and as noted above, he is being regulated, he is being regulated by the County's Consumer Protection Board, not the Board of County Commissioners.

The second part of Section 112.313(7)(a), Florida Statutes, prohibits you from having any employment or contractual relationship that will create a continuing or frequently recurring conflict of interest or that will impede the full and faithful discharge of your public duties. For purposes of the Code of Ethics, a "conflict of interest" is defined in Section 112.312(8), Florida Statutes, to mean "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest."

Based upon the above definition, the Court in Zerwick v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982), held that Section 112.313(7)(a) "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.'" As in CEO 84-105, we also have noted that this provision should be read together with Section 112.316, Florida Statutes, which 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 duties to the state or the county city, or other political subdivision of the state involved.

We note that neither the Consumer Protection Board nor the Board of County Commissioners is involved either in the code and zoning enforcement proceedings or in a review of those proceedings. As long as during the course of your representation of the client you do not handle hearings as a Hearing Officer in which any of the members of the Consumer Protection Board are involved in their personal capacities or in which the Attorney representing the Board in opposing your client's interests is involved, without their consent and that of your clients, your representation of the client should have no impact on the decisions which you make as a Hearing Officer. We also find that your continued representation of the client would not interfere with the full and faithful discharge of your public duties as a Hearing Officer.

Accordingly, we find that no prohibited conflict of interest would be created were you to continue to represent your client in the Circuit Court on an appeal from a decision of the County's Consumer Protection Board under the circumstances you have described and the conditions set forth herein, while also acting as a Hearing Officer on behalf of the County's Code and Zoning Enforcement Board.