CEO 19-15—September 13, 2019
APPLICABILITY OF STATUTORY FINANCIAL DISCLOSURE LAW
TO ATTORNEY ROUTINELY PROVIDING MORE LEGAL
SERVICES TO TOWN THAN ANY OTHER ATTORNEY
To: Matt E. Dannheisser, Esq. (Town of Century)
Under the circumstances presented, a private attorney who routinely provides legal services to a town, and who renders more legal services to the town than any other attorney, is a "local officer" required to file an annual statement of financial interests under Section 112.3145, Florida Statutes, despite the fact that he has no ongoing contractual obligation to serve as the town attorney. Referenced are CEO 08-27, CEO 85-44, CEO 77-171, CEO 77-138, and CEO 75-101 .
Are you, a private attorney who provides legal services to a town on a regular basis and at a frequency more than any other attorney, a "local officer" required to file annual financial disclosure pursuant to Section 112.3145(2)(b), Florida Statutes?
Under the circumstances presented, your question is answered in the affirmative.
In your letter of inquiry and additional information provided to our staff, you indicate you have provided legal services to the Town of Century since 1992. You state neither the Town's Charter nor the Town's Code of Ordinances provide for a position of Town Attorney, and so the Town obtains legal services by contracting with outside, private counsel to serve as independent contractors.
You relate you have no ongoing contract with the Town to serve as its Town Attorney1 and are not paid a retainer to ensure your availability. You indicate, instead, that the Town enters into separate contracts with you each time it needs you to perform a legal service for it. You relate this happens often enough that there is a specific process by which the Town contracts with you. In particular, Town consultants desiring to use your services on behalf of the Town must first obtain approval from the Town Mayor or Town Clerk, and then the approval must be conveyed to you either by the consultant—in which case you must have written confirmation from the Mayor or Clerk—or directly by the Mayor or Clerk.
You indicate the matters for which you have represented the Town are many and varied, ranging from writing legal documents, such as leases, documents regarding real property acquisitions, and ordinances and contracts, to rendering advice on personnel and disciplinary matters, municipal election law issues, and utility operations. You estimate that in the 27 years that you have provided legal services to the Town, you worked for the Town on approximately 131 separate matters, an average of 5 matters per year. You state that, in many instances, you have been engaged to provide separate yet concurrent legal services to the Town, such that even if you complete one particular contract, you may have ongoing obligations under a separate contract. You relate that although the Town uses the services of other attorneys at times, your understanding is that you perform more legal work for the Town than any other private counsel.
Despite the frequency of your services to the Town, you indicate you do not attend meetings of the Town Council, do not regularly engage with Town Councilmembers, and have visited the Town only once in the past two years. Considering this, as well as the fact that you have no ongoing contractual obligation to serve as the Town Attorney and provide services only when requested, you inquire whether you can be considered a "local officer" subject to the filing of an annual CE Form 1 financial disclosure pursuant to Section 112.3145(2)(b), Florida Statutes.2
Section 112.3145(2)(b), in part, requires "local officers" to annually file a CE Form 1 Statement of Financial Interests by July 1. For the 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; finance director of a county, municipality, or other political subdivision; 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 CATEOGRY ONE, on behalf of any political subdivision of the state or any entity thereof.
Section 112.3145(1)(a)3., Florida Statutes. (emphasis added). Accordingly, any person holding the position of a "municipal attorney" is expressly included within the definition of a "local officer," and is therefore required to file an annual statement of financial interests by July 1.
We have addressed in the past whether an exception should be recognized for a private attorney retained to serve as a municipal attorney on an independent contractor basis. We have consistently determined there is no distinction, exemption, or exception in Section 112.3145 for private counsel contracted to serve as municipal attorneys and have found such individuals are "local officers" as contemplated by the statute. See CEO 08-027, CEO 77-171, CEO 77-138, and CEO 75-101.
Your situation is unique or insular in that the Town has not retained you to perform the duties of a Town Attorney pursuant to an ongoing contract but rather has entered into a series of contracts with you to provide legal services on specific tasks. We have found in the past that an outside counsel who represents a municipality only on isolated occasions will not be considered a "municipal attorney" for the purposes of the financial disclosure law. See CEO 85-044 (finding an attorney who provided voluntary legal assistance to a city approximately every other month and who had no agreement or understanding with the city was not a 'local officer" required to file financial disclosure).3 And, if you had assisted the Town only infrequently, and were there other attorneys who provided the Town with more legal services than you, this reasoning might apply to your situation as well.
However, considering the totality of circumstances present here, to find you provide only occasional counsel and perform relatively minor work would not accurately reflect your relationship with the Town. You have consistently provided legal services to the Town for almost thirty years, often handling multiple matters for the Town at the same time, and you indicate you provide more legal services to the Town than any other attorney. The close nature of your relationship with the Town is demonstrated in that Town consultants requiring legal services (engineers, grant coordinators, etc.) were automatically contacting you to obtain advice, prompting the Mayor and Town Clerk to create a system whereby their approval was required before your services could be secured. We have found the requirement to file an annual statement of financial interest applies to anyone who holds the position of municipal attorney, regardless of the technical nature of how he or she holds that position. See CEO 08-027. Considering that you routinely perform a significant amount of work for the Town, more than any other attorney, and have performed these services for an extended period of time, we find you to be the Town's "municipal attorney" subject to the filing requirements of Section 112.3145(2)(b).
We believe this finding reflects the underlying public purpose behind the financial disclosure laws, which is to encourage transparency among those representing public agencies on matters of importance to the agency and its constituency. Your work for the Town is not only significant and frequent, but also addresses issues of great importance to the Town's citizens, such as economic development, property acquisitions, the drafting of ordinances and contracts, personnel disciplinary matters, and municipal election issues. To find you are not a "local officer," despite your frequent involvement in these issues on behalf of the Town, would deprive the Town's citizens of a transparency in government and would not serve the purpose of the disclosure laws.
Although you argue you should not be considered a "local officer" as you hold no office for the Town, we decline to accept your view. Your argument is based on language in CEO 08-027, which determined that a private attorney was serving as a "municipal attorney"—and, therefore, was subject to the filing requirements of Section 112.3145(2)(b)—in part because the municipal charter established the position of city attorney and delegated specific duties to the individual holding it. You argue, here, that because the Town's Charter and Code of Ordinances do not formally and specifically create an "Office of Town Attorney," you cannot be considered a "local officer" subject to filing an annual disclosure form.
Regarding CEO 08-027, you are partially correct inasmuch as we based that opinion, at least in part, on the fact that the municipal charter clearly established the city attorney position. However, this was just one factor in our analysis. We also emphasized that the attorney in question performed a significant amount of legal work for the municipality, a fact which is present in your situation, and was widely known as being that municipality's attorney. To read CEO 08-027 as requiring specific language in a municipal charter or code would lead to disparate treatment, as an attorney, despite performing the same amount and nature of work for a municipality as other city attorneys across the State, would be able to avoid filing disclosure simply because his or her position was not specially created in a charter or ordinance. We cannot accept such an interpretation.
In addition, there is no requirement in Section 112.3145 that to be deemed a "local officer," the individual in question must be serving in a position created by a local charter or ordinance. Section 112.3145(1)(a)3. simply states a "local officer" is "[a]ny person holding one or more of the following positions" and then lists several titles, including a municipal attorney. To not require you to file simply because the Town's Charter does not create an "Office of Town Attorney," despite the fact that you effectively serve in that position by providing the majority of legal work required by the Town, would ignore the reality of your situation and would be counter to the purpose of financial disclosure.4
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on September 13, 2019, and RENDERED this 18th day of September, 2019.
Kimberly B. Rezanka, Chair
You relate that when you first began providing services to the Town in 1992, it was pursuant to a formal agreement to perform general legal services, but that this agreement did not extend beyond the terms of office for the then-Town Mayor and Town Councilmembers, and has not otherwise been renewed.
You indicate you filed the CE Form 1 in the past based on other public positions that you held, but are bringing the inquiry now as the only possible basis for a current filing obligation would be your work for the Town of Century.
CEO 85-044 is factually distinguishable from your situation inasmuch as the private attorney in that matter was providing voluntary, unpaid assistance to the city, a factor not present here. However, to the extent that CEO 85-044 differs from the recommendation herein, we recede from CEO 85-044.
 In contrast to the language of Section 112.3145(1)(a)3., that of Section 112.313(1), Florida Statutes, specifically states the “public officers” subject to the prohibitions in Section 112.313 will be “any person elected or appointed to hold office in any agency, including any person serving on an advisory body.” (emphasis added). The Legislature drafted Section 112.313(1) to encompass those holding a specifically created office, yet chose not to be use such language in Section 112.3145(1)(a)3. We have to assume this distinction was intentional.