LOCAL GOVERNMENT ATTORNEYS; CONFLICT OF INTEREST

VALUE ADJUSTMENT BOARD ATTORNEY REPRESENTING
HIMSELF BEFORE BOARD

To: Rafael E. Millares, Esq. (Miami-Dade)

SUMMARY:

Section 112.313(16), Florida Statutes, would not prohibit a value adjustment board attorney from representing himself or herself, in their individual capacity as a private citizen, challenging the assessed value of their own home or property, before the value adjustment board in the same county wherein he or she serves as counsel to the board. However, the value adjustment board attorney (or law firm in which the board attorney is a member, partner, or employee) is prohibited by Section 112.313(16)(c), Florida Statutes, from representing a private individual or entity (other than himself or herself) before the value adjustment board. CEOs 17-11, CEO 13-9, CEO 93-36, and CEO 78-79 are referenced.¹

QUESTION 1:

Would Section 112.313(16)(c), Florida Statutes, prohibit you, a value adjustment board attorney, from challenging the assessed property value of your own home and/or property in the same county wherein you provide counsel to the value adjustment board?

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

In your letter of inquiry you indicate that you are an attorney in private practice who serves as the attorney for the Miami-Dade Value Adjustment Board (Miami-Dade VAB or Board). You state that you are not a public employee but, rather, have a contract to provide regular legal services to the Miami-Dade VAB on a billable-hours basis as an independent contractor. You relate that the Miami-Dade VAB contracts with Special Magistrates to hear cases pertaining to property-related issues. You state that in your capacity as the Miami-Dade VAB attorney you do not hear cases but, rather, advise the Board regarding a range of matters including employment issues pertaining to the retention of Special Magistrates and ensuring that the Miami-Dade VAB adheres to Florida law. In this context, you inquire, first, whether you may, on behalf of yourself, challenge the assessed property value of your own home and/or business property owned by you—and, second if you may challenge the assessed property value of a home or business property owned by a corporation or trust—in the same county wherein you work as the attorney for the Board.

Pertinent to your inquiry is Section 112.313(16), Florida Statutes, which provides:

LOCAL GOVERNMENT ATTORNEYS.—

(a) For the purposes of this section, “local government attorney” means any individual who routinely serves as the attorney for a unit of local government. The term shall not include any person who renders legal services to a unit of local government pursuant to contract limited to a specific issue or subject, to specific litigation, or to a specific administrative proceeding. For the purposes of this section, “unit of local government” includes, but is not limited to, municipalities, counties, and special districts.

(b) It shall not constitute a violation of subsection (3) or subsection (7) for a unit of local government to contract with a law firm, operating as either a partnership or a professional association, or in any combination thereof, or with a local government attorney who is a member of or is otherwise associated with the law firm, to provide any or all legal services to the unit of local government, so long as the local government attorney is not a full-time employee or member of the governing body of the unit of local government. However, the standards of conduct as provided in subsections (2), (4), (5), (6), and (8) shall apply to any person who serves as a local government attorney.

(c) No local government attorney or law firm in which the local government attorney is a member, partner, or employee shall represent a private individual or entity before the unit of local government to which the local government attorney provides legal services. A local government attorney whose contract with the unit of local government does not include provisions that authorize or mandate the use of the law firm of the local government attorney to complete legal services for the unit of local government shall not recommend or otherwise refer legal work to that attorney’s law firm to be completed for the unit of local government.

A "local government attorney" is defined to mean "any individual who routinely serves as the attorney for a unit of local government." "Unit of local government" includes, but is not limited to, municipalities, counties, and special districts. A value adjustment board, is created for each county in the State pursuant to Section 194.015, Florida Statutes, and consists of members of the governing board of the county, members of the school board of the county, and citizen members chosen by the governing body of the county. The clerk of the governing body of the county serves as the clerk of the value adjustment board. Moreover, Section 194.015, Florida Statutes, further provides:

The board shall appoint private counsel who has practiced law for over 5 years and who shall receive such compensation as may be established by the board. The private counsel may not represent the property appraiser, the tax collector, any taxing authority, or any property owner in any administrative or judicial review of property taxes.

You indicate that you are the private counsel retained by the Miami-Dade VAB. As such, you routinely serve as the attorney for the Miami-Dade VAB. As the respective value adjustment boards operate to serve the county wherein they exist, are comprised of members drawn from the governing body of the county as well as school board members therefrom, and citizens that live therein, and are staffed by employees of the clerk's office contained within the county—we find that the Board is a "unit of local government" as contemplated by Section 112.313(16), Florida Statutes. As such, the requirements of the Section 112.313(16), Florida Statutes, are applicable to you as a local government attorney. Regarding this finding, we note that it apparently is one of first impression. However, we are persuaded that the "includes, but is not limited to" language of the definition of "local government attorney" shows that the Legislature intended that it encompass persons who routinely provide legal services at the local government level, regardless of whether the services are provided to the overall, or main, government of the political subdivisions. That is, we find that the definition is not limited to a county attorney, a city attorney, a school board attorney, or a special district attorney. In this regard, compare the definition of "[f]inance director of a county, municipality, or other political subdivision" in Section 112.3145(1)(a)3, Florida Statutes; and See CEO 13-17 and CEO 17-11.

Nevertheless, it is axiomatic pursuant to opinions of this Commission that no public officer, employee, or local government attorney is prohibited from appearing before any board in an individual capacity as a private citizen, representing solely his or her own interests. See CEO 93-36 and CEO 78-79. Therefore, we find that Section 112.313(16)(c), Florida Statutes, would not prohibit you in your individual capacity to represent your own interests as a property owner to challenge the assessed property value of your own home or property² before the Miami-Dade VAB or any unit of local government.

However, Section 112.313(16)(c), Florida Statutes, expressly prohibits a local government attorney or law firm in which the local government attorney is a member, partner, or employee from representing a private individual or entity before the unit of local government to which the local government attorney provides legal services. "Representation" is defined in Section 112.312(22) as "actual physical attendance on behalf of a client in an agency proceeding, the writing of letters or filing of documents on behalf of a client, and personal communications made with the officers or employees of any agency on behalf of a client." Therefore, you would be prohibited by Section 112.313(16)(c), Florida Statutes, from representing another person or entity, including a corporation, trust, limited liability company, or similar entity with a "legal personhood," in a proceeding before the Miami-Dade VAB as it would constitute prohibited representation before the unit of local government to which you provide legal services.³

Question 1 is answered accordingly.

QUESTION 2:

Would any provision of the Code of Ethics prohibit you from creating and/or participating in an e-mail list-serve or other electronic group of Florida value adjustment board attorneys or from limiting the membership of such a group to active value adjustment board attorneys?

Question 2 is answered in the negative.

We find that no provision of the Code of Ethics would prohibit you, a value adjustment board attorney, from creating or participating in an e-mail list-serve or other electronic group of attorneys serving as counsel for value adjustment boards. Neither would the Code of Ethics prohibit the members of such a group from limiting the participants therein to current value adjustment board attorneys.

Question 2 is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 8, 2017, and RENDERED this 13th day of December, 2017.

____________________________________

Michelle Anchors, Chair

^[1]Prior opinions of the Commission on Ethics can be viewed at www.ethics.state.fl.us.

^[2]Meaning property titled to you in your own name as a natural person or in the names of you and your spouse or of you and other natural persons.

^[2]We make no finding as to whether Section 194.015, Florida Statutes, or any rule of the Florida Bar would impact your representation of your personal property interests before the Board, as these provisions are not within our jurisdiction to opine upon. However, we note that Section 194.015, Florida Statutes, expressly prohibits value adjustment board attorneys from representing "the property appraiser, the tax collector, any taxing authority, or any property owner in any administrative or judicial review of property taxes."