CEO 75-27 -- March 14, 1975

CONFLICT OF INTEREST

THE RETENTION BY A CITY OF LAW FIRM OF WHICH LEGISLATOR IS AN ASSOCIATE DOES NOT CONSTITUTE A CONFLICT OF INTEREST

To: Barry S. Richard, Representative, 112th District, North Miami Beach

Prepared by: Gene L. "Hal" Johnson

SUMMARY:

Reference is made to CEO 74-58, CEO 74-69, and AGO SC 70-18. Section 112.313(5), F. S., as amended by Ch. 74- 177, Laws of Florida, prohibits a public officer from accepting employment which conflicts with or impedes his public duties. In previous interpretations, this prohibition has been seen as contingent only on employment that by its very nature or scope creates conflict between private interest and public duty. The law firm of which Representative Richard is an associate has been offered the position of city attorney by a Florida municipality. Such representation by Representative Richard does not appear to be a conflict of the nature described in s. 112.313(5), F. S. However, Representative Richard is required by the Code of Ethics to make full disclosure of possible or potential conflicts of interest which may arise; see s. 112.313(3), F. S.

QUESTION:

The law firm of which I am an associate has received an offer to represent a city in the capacity of city attorney: Would such representation by a member of my firm or by me personally constitute a conflict of interest with my public position as a state legislator?

Your question is answered in the negative.

The question you pose results from a Florida municipality having offered the position of city attorney to the law firm of which you are an associate. Since members of the firm, including you personally, will be expected to advise and represent the city on legal matters, you are inquiring as to whether such representation would be in violation of the standards of conduct provisions of the Code of Ethics in light of your position as a state legislator.

As you are aware, Chs. 74-176 and 74-177, Laws of Florida, rewrote virtually every section of the Code of Ethics, part III, Ch. 112, F. S. As a state legislator, you are clearly a public officer, s. 112.312(7)(a), supra, and therefore are subject to the standards of conduct as set forth in s. 112.313(5), F. S. That section, which deals with subjective conflicts of interest, states in part:

No public officer or employee of an agency shall accept . . . other employment that will create a conflict between his private interests and the performance of his public duties, or will impede the full and faithful discharge of his public duties. [Section 112.313(5), F. S.]

We have interpreted this provision to prohibit only such employment that by its very nature or scope would create a continuous or constantly recurring conflict between one's private interests and his public duties. See CEO 74-58 and CEO 74-69.

In the instant case, it does not appear that a municipality's retention of your law firm or of you personally would create the type of conflict intended to be prohibited by this provision.

In lieu of a prohibition, we read the Code of Ethics as requiring full disclosure of conflicts of interest which may arise infrequently. Whereas s. 112.313(5) sets forth prohibited conflicts, s. 112.313(3) provides for disclosure of other possible or potential conflicts. Where a state legislator is retained in his private capacity as an attorney by a corporate entity, for example, he must comply with the financial disclosure requirements of s. 112.3145(1)(c), F. S., and the disclosure of conflicts provision contained in s. 112.313(3). Further, should a voting conflict of interest arise, he would then be required to file a statement disclosing the conflict under s. 112.314(2), F. S.

The view we take in this opinion is consistent with the Attorney General advisory opinion numbered SC 70-18. In that opinion, a state legislator inquired as to the propriety of his acceptance of a position as an attorney for an aqueduct authority or a building and zoning department of a county. The Attorney General found no prohibition, stating that acceptance of employment is not prohibited where it does not interfere with the full and faithful discharge by such legislator of his duties to the state. We find these cases analogous to the question you have raised and concur in the Attorney General's opinion.

In conclusion, we find that acceptance of the position of city attorney by your law firm or by you personally will not create a prohibited conflict of interest under provisions of the Code of Ethics for Public Officers and Employees.