CONFLICT OF INTEREST

CITY ZONING HEARING OFFICER MEMBER OF LAW FIRM MEMBERS OF WHICH REPRESENT CLIENTS IN CITY MATTERS

To: Name withheld at person’s request (North Port)

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, if an attorney in a law firm is appointed as a zoning hearing officer in zoning appeals and variance cases and members of the firm represent clients on unrelated matters before the city commission, its subordinate boards, and city staff. However, were other members of the firm to represent clients before a zoning hearing officer, a prohibited conflict would be created. Moreover, were a zoning hearing officer or another attorney to represent a client in circuit court or before other forums challenging an order arising from a zoning hearing officer’s decision, a prohibited conflict would be created. CEO’s 11-6, 09-10, 07-13, 03-7, 94-5, 92-16, and 89-39, are referenced.¹

QUESTION:

Would a prohibited conflict of interest be created if an attorney in a law firm is appointed as a city zoning hearing officer and other attorneys of the firm represent clients in matters before the city commission, its subordinate boards, and city staff?

Under the circumstances presented your question is answered as set forth below.

Through your letter of inquiry, accompanying materials, and communications with our staff, you state that the City of North Port has created the position of Zoning Hearing Officer to which the City Commission may appoint one or more persons (to preside individually).² Ordinance No. 2014-29 contemplates that one or more persons shall serve as Zoning Hearing Officer on a standing basis and any given case is assigned to a single Zoning Hearing Officer. Further, if a Zoning Hearing Officer disqualifies himself or herself, then another Zoning Hearing Officer with a standing appointment from the City Commission will be selected to preside over zoning appeals and variance matters under the City’s Unified Land Development Code. The compensation rate for a Zoning Hearing Officer is set pursuant to a contractual agreement with the City Commission providing the terms of service and the billable hourly rate.³

You relate that you are an associate of a law firm of attorneys. You specify that several of the law firm’s attorneys practice in the area of land use and/or local government administrative law and infrequently represent private clients in matters before the City Commission, its subordinate boards, and/or City staff. Infrequently, some of these matters result in litigation adverse to the City. You further represent that one or more of the firm’s attorneys are considering seeking to be appointed as a Zoning Hearing Officer. You state that under no circumstances would any member of the firm represent a private client before any attorney of the firm presiding as a Zoning Hearing Officer.

Further, you indicate that a firm attorney serving as a Zoning Hearing Officer may, if he or she is a shareholder of the firm, ultimately benefit from proceeds obtained by other attorneys of the firm’s work on matters before the City (and, potentially, adverse to the City). You advise that the firm is concerned that if one or more of its attorneys are appointed as a Zoning Hearing Officer, this will create a conflict of interest which would prevent other members of the firm from representing private clients before the City Commission, its subordinate boards, or City staff, and in any litigation adverse to the City resulting therefrom.

The applicable provision of the Code of Ethics for Public Officers and Employees is Section 112.313(7)(a), Florida Statutes, which 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 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.

The second portion of the above-quoted provision would prohibit a Zoning Hearing Officer⁴ from having employment or a 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 which would impede the full and faithful discharge of his or her public duties.

We have consistently found that every member of a law firm holds a contractual relationship with the firm and with each client of the firm. See CEO 09-10, CEO 07-13, CEO 03-7, and CEO 94-5. Therefore, we must analyze whether the law firm connections of the Zoning Hearing Officer would logically, or in reality, create a prohibited conflict of interest. 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.’” Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982).

Applying this reasoning to your inquiry, we recognize that we have, in previous opinions, determined that the Code of Ethics does not prohibit a public officer, or members of his firm, from representing clients on substantively unrelated matters before parts of the overall government he serves other than his own part. See, for example, CEO 92-16 (county code and zoning hearing officer representing client in appeal of decision of county’s consumer protection board). Moreover, we note that the position of Zoning Hearing Officer created by Ordinance No. 2014-29 provides the public officer with jurisdictional authority over the discrete issues arising pursuant to zoning appeals and variance matters under the City’s Unified Land Development Code. Zoning Hearing Officers do not serve on or provide counsel to the City Commission. Decisions of a Zoning Hearing Officer are not subject to review by the City Commission but rather are subject to appeal to the Circuit Court.⁵ Therefore, in light of the specialized and independent function of Zoning Hearing Officers over the specific issues arising from zoning appeals and variance matters, we find that a prohibited conflict of interest would not be created for a Zoning Hearing Officer if other attorneys of the firm represent clients on unrelated land use or local government administrative matters before the City Commission, subordinate boards of the City Commission, or City staff.

However, we find that a prohibited conflict would be created were members of a Zoning Hearing Officer’s firm to represent clients on matters before any Zoning Hearing Officer. In CEO 11-6, we determined that a city planning and zoning board member would have a prohibited conflict if he or members of his private professional firm represented clients before the planning and zoning board. We also found that a prohibited conflict would be created were the member’s firm to work for a client on a matter before the board, even if another firm actually represented the client before the board. Similarly, in the instant matter, we find that if an attorney in your firm is appointed as a Zoning Hearing Officer, a prohibited conflict would be created were other attorneys of the firm to represent clients on zoning or variance matters before any Zoning Hearing Officer, even those Zoning Hearing Officers who are not members of your firm.

Moreover, in accordance with CEO 89-39 and its progeny, we further find that if a member of your firm is appointed as a Zoning Hearing Officer, a prohibited conflict would be created were another attorney of your firm to represent clients challenging orders entered by that or any other Zoning Hearing Officer. This determination is based on our view that the public duties of a Zoning Hearing Officer and the private interests of his or her law firm’s representation of clients in matters challenging orders issued by Zoning Hearing Officers are incompatible.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 5, 2015, and RENDERED this 10th day of June, 2015.

____________________________________

Linda McKee Robison, Chair

^[1]Prior opinions cited herein are available at www.ethics.state.fl.us.

^[2]On July 14, 2014, the City enacted Ordinance No. 2014-29 thereby creating the position of Zoning Hearing Officer.

^[3]See Ordinance No. 2014-29, Section A(5) providing that “Hearing Officers shall be compensated at a rate to be determined by the city commission.”

^[4]Zoning Hearing Officers are “public officers” subject to the application of Section 112.313, Florida Statutes, because they constitute a person appointed to hold public office as contemplated under Section 112.313(1), Florida Statutes. In addition, Ordinance No. 2014-29, Section A(6) provides that “[e]ach Hearing Officer shall comply with the requirements of Ch. 112, Florida Statutes, and shall file financial disclosure required for local officers.”

^[5]Ordinance No. 2014-29, Section G, provides “Appeals from decisions of Hearing Officer. Any person or persons, jointly or severally, including any officer, department, board or commission of the City, aggrieved by any decision of the Hearing Officer may apply to the Circuit Court having jurisdiction in the City of North Port for judicial relief within thirty (30) days after the rendition of the decision by the Hearing Officer. The proceedings in the Circuit Court shall be by petition for writ of certiorari, which shall be governed by the Florida Rules of Appellate Procedure.”