FINANCIAL DISCLOSURE

APPLICABILITY OF STATUTORY FINANCIAL DISCLOSURE LAW TO CITY ATTORNEY WHOSE FIRM IS RETAINED AS AN INDEPENDENT CONTRACTOR

To: John O. Williams, Esquire (Tallahassee)

SUMMARY:

A city attorney who serves in that capacity because his firm is retained as an independent contractor is required to file financial disclosure pursuant to Section 112.3145(2)(b), Florida Statutes.

QUESTION:

Are you, a city attorney whose firm was hired to provide legal services to the municipality on an independent contractor basis, required to file annual financial disclosure pursuant to Section 112.3145(2)(b), Florida Statutes?

Under the circumstances presented herein, your question is answered in the affirmative.

You advise that your firm, Williams & Holz, P.A., has a contract to perform legal services for the City of Midway. The firm has had this contract for the past six years. You advise that the firm “acts as and is an independent contractor.” The contract with Midway has never named you as an individual to serve as the City Attorney. You advise that you attend meetings and perform many of the legal services necessary to the operation of the City. The City also contracts out some legal services. The firm uses its own staff, equipment, legal publications, and office space. The City also retained as an Assistant City Attorney the law firm of another individual. You advise that you and the other individual split the workload “fairly evenly.” You advise that some of the City Council members refer to you as the City Attorney. You also state, “I think all the council members understand that the firm has the contract with the City of Midway and not me individually.” The City Council’s minutes sometimes reflect you as City Attorney and sometimes reflect you as the representative of Williams & Holz, P.A. and they refer to the other attorney as Assistant City Attorney. The City of Midway’s website indicates that you, not your firm, are the City Attorney. You advise that you do “almost all of the work for which Williams & Holz, P.A., has responsibility.”

The City of Midway’s Charter and Code of Ordinances lists the City’s Charter Officers. In Article VI, Section 6.2, the Charter provides:¹

The city council shall appoint a city attorney, upon such terms and for such compensation as the city council shall fix. The city attorney shall act as legal advisor to and attorney for the city and all of its officers or employees in matters arising out of the performance of their official duties for the city. He or she shall prepare all instruments in writing, as assigned by the city council, in which the city is concerned and shall endorse on each his or her approval of the form and correctness thereof.

The city attorney shall prosecute and defend or assist in the prosecution and defense, for and on behalf of the city, all complaints, suits and controversies in which the city is a party, unless said function is designated by statute or otherwise to another agency, and shall perform such other professional duties as may be required of him or her by official action of the city council. He or she shall furnish the city council, the city manager, the head of any department or any officer or board his opinion on any question of law relating to their respective duties and powers.

The city attorney shall be an attorney-at-law duly licensed to practice law in the State of Florida with at least three years' of legal experience.

The city council may appoint an assistant city attorney if necessary. The council may contract with such other attorneys or firm of attorneys to preform such services on behalf of the city on specialized projects as may be deemed necessary or expedient in the discretion of the city council. [Sic]

In light of the foregoing, you inquire whether you are required to file annual financial disclosure pursuant to Section 112.3145, Florida Statutes. Section 112.3145(2)(b), Florida Statutes, in pertinent part provides:

Each state or local officer and each specified state employee shall file a statement of financial interests no later than July 1 of each year.

For purposes of Section 112.3145(2)(b), the term “local officer” includes:

Any person holding one or more of the following positions: mayor; county or city manager; chief administrative employee of a county, municipality, or other political subdivision; county or municipal attorney; chief county or municipal building code inspector; county or municipal water resources coordinator; county or municipal pollution control director; county or municipal environmental control director; county or municipal administrator, with power to grant or deny a land development permit; chief of police; fire chief; municipal clerk; district school superintendent; community college president; district medical examiner; or purchasing agent having the authority to make any purchase exceeding the threshold amount provided for in s. 287.017 for CATEGORY ONE, on behalf of any political subdivision of the state or any entity thereof. [Section 112.3145(1)(a)3, Florida Statutes.] Emphasis supplied.

Section 112.3145(2)(b) requires all state officers, local officers, and specified state employees to file a statement of financial interests no later than July 1 of each year. Because any person holding the position of municipal attorney is expressly included in the definition of “local officer,” he or she is required to file a statement of financial interests no later than July 1 of each year. There is no distinction, exemption, or exception in the statute concerning those who serve on an independent contractor basis.

For purposes of the annual statement of financial interests, we have, since CEO 75-101, unwaveringly said that city attorneys who are hired as independent contractors are required to file an annual statement of financial interests. In CEO 77-138, we stated that an attorney engaged in the private practice of law was a “public officer” required to file financial disclosure by virtue of being retained as the city attorney. In CEO 77-171, we said that members of a law firm which was retained on a part-time basis at an hourly rate to represent a municipality are public officers and, therefore, are required to file financial disclosure.²

The essence of your argument is that because you are an independent contractor you are not required to file an annual statement of financial interests. To support this assertion, you cite several of our prior opinions. Each of the opinions cited in your inquiry stands for the proposition that the standards of conduct in the Code of Ethics do not apply to those hired on an independent contractor basis.³

The standards of conduct discussed in the opinions you referenced are enumerated in Section 112.313, Florida Statutes. The term public officer is assigned its own definition for purposes of Section 112.313. “Public officer” is defined as “any person elected or appointed to hold office in any agency, including any person serving on an advisory body.” At the time of the opinions you cited, the standards of conduct in Section 112.313 applied to three classes of people: public officers as defined in Section 112.313(1); employees of an agency; and candidates when included in a given subsection. In the opinions you cited, it was clear that the requestor was not a “public officer” or a candidate. Therefore, we only would have had jurisdiction to enforce the standards of conduct against them if they were employees of an agency.

We recognized very early on the legal distinction between public employees and independent contractors. See CEO 74-6 and CEO 75-17. This legal distinction required us to conclude that the Legislature did not intend to include independent contractors in the class of people subject to the standards of conduct in Section 112.313, Florida Statutes. Since the issuance of the opinions you cited, the Legislature has had ample time to amend Section 112.313(1) to include independent contractors if it thought we had erred. To date, the Legislature has not done so. Therefore, we are bound to exclude “independent contractors” from applicability of the standards of conduct within Section 112.313, Florida Statutes.⁴

However, reliance on those opinions in the context of a county or municipal attorney is no longer warranted. In 1994, the Legislature clarified the applicability of the provisions of Section 112.313, Florida Statutes to local attorneys, when it passed Chapter 94-277, Laws of Florida. That provision amended Section 112.313 by adding the phrase “local government attorneys” to several of the standards of conduct. The Legislature also added Section 112.313(16), Florida Statutes.⁵ Moreover, the Legislature expressly stated in Section 112.313(16)(b) that subsections (2), (4), (5), (6), and (8) shall apply to any person who serves as the “local government attorney.” These enactments occurred not long after we dismissed two complaints because we held that the independent contractor local government attorneys were not subject to the standards of conduct in Section 112.313. See In re T. Buckingham Bird, Complaint No. 91-18 and In re Gregory Beauchamp, Complaint Nos. 93-71, 93-85, and 93-88 (Consolidated). In sum, Chapter 94-277, Laws of Florida, made it clear that the Legislature intended to make the standards of conduct in Section 112.313 applicable to “any individual who routinely serves as the attorney for a unit of local government.” This is, in effect, a statutory repeal of the opinions you cited.

Finally, in the context of Section 112.3145, we believe that our long-standing interpretation is correct. Section 112.3145(1)(a)3 specifically enumerates any person holding the position of municipal attorney as one who is required to file an annual statement of financial interests. That Section does not differentiate between an enumerated city attorney who is a city officer, a city attorney who is a city employee, an attorney retained via a contract directly with the attorney in his or her individual capacity, or an attorney whose firm was hired via contract when that attorney does the majority of the City’s work for the firm. Nothing in that Section indicates that independent contractor attorneys should not be required to file financial disclosure. We can assume that the Legislature was aware that many local government attorneys are hired on an independent contractor basis, especially in jurisdictions with low populations. The Legislature also has been aware of our long-standing interpretation of Section 112.3145(1)(a)3, Florida Statutes. As we have opined that independent contractor attorneys are required to file financial disclosure and the Legislature has not amended the statute, we must assume that the Legislature agrees with our interpretation of Section 112.3145(1)(a)3.

Moreover, we believe that the underlying public purpose of filing an annual statement of financial interests requires the disclosure. A municipal attorney is involved in advising the city concerning its conduct of business, litigating issues of public importance, and resolution of business and litigation. It is important that the citizens of a city have a way to ascertain where the loyalties of its city attorney lie. The city’s constituency would be deprived of this check on government were the law to exclude independent contractor attorneys from the required annual filing of a statement of financial interests.

Under these circumstances, we find that you hold the position of municipal attorney for purposes of Section 112.3145(1)(a)3. The Midway City Charter clearly establishes the position of the City Attorney.⁶ It is also clear that the Charter contemplates that the City Attorney position is to be filled by an individual. The Charter contemplates that the City Attorney shall be an attorney-at-law duly licensed to practice law in the State of Florida with at least three years’ legal experience. This is significant because the Florida Bar does not license business entities to practice law, only individuals. There is no express contemplation of hiring a firm to serve as City Attorney in the City Charter. Also, the requirement to file an annual statement of financial interests applies to anyone who holds the position of municipal attorney. It does not distinguish based upon the technical nature of how the person holds that position. You do a significant amount of the legal work for the City and are known as the City Attorney. The public policy favors the ability of the citizens of Midway to know the limited financial information we require. We believe that our rationale in CEO 75-101, CEO 77-138, and CEO 77-171 applies with the same force now that it did at the time.

You also raise the argument that the requirement intrudes upon your constitutional right to privacy. As an administrative agency, we have no authority to declare a statute to be unconstitutional.

Accordingly, we find that you are required to file an annual statement of financial interests pursuant to 112.3145(2)(b), Florida Statutes.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 5, 2008 and RENDERED this 10th day of December, 2008.

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Cheryl Forchilli, Chair