CEO 75-39 -- March 14, 1975

CONFLICT OF INTEREST

RETENTION BY COUNTY LEGISLATIVE DELEGATION OF CITY COMMISSIONER AS ITS ATTORNEY DOES NOT CREATE A CONFLICT OF INTEREST

To: William G. Zinkil, Sr., Senator, 32nd District, Hollywood

Prepared by: Gene L. "Hal" Johnson

SUMMARY:

The employment prohibition contained in s. 112.313(5), F. S., as amended by Ch. 74-177, Laws of Florida, is limited to those cases in which the employment by its very nature or scope creates a continuous or recurrent conflict between private interest and public duty. No such conflict seems to be indicated in the retention of a city commissioner as attorney for the Broward County Legislative Delegation, paid for by the Broward County Commission funds. Should conflict arise when the attorney must work on matters affecting his municipality, the conflict should be reexamined as to special circumstances. Further, the attorney will be regulated in his private capacity by the Code of Professional Responsibility and in his public capacity by the disclosure requirements of s. 112.314(2), F. S.

QUESTION:

Would it be a prohibited conflict of interest for the Broward County Legislative Delegation to retain an individual who is a city commissioner as the delegation attorney?

Your question is answered in the negative.

You have advised us in your letter of inquiry that the Broward County Legislative Delegation retains for legal assistance an attorney whose position is provided for by funds approved by the Broward County Commission under Ch. 63-1150, Laws of Florida. Since the delegation is considering retaining as the delegation attorney an individual who is also a city commissioner for a municipality within Broward County, you question the propriety of such action in light of s. 112.313(5), F. S., which 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., as amended by Ch. 74- 177, Laws of Florida.]

The issue is whether a public officer may be retained in his private capacity as an attorney by the delegation without creating a prohibited conflict of interest.

In a previous opinion of this commission, CEO 74-58, we held this provision to be limited to those cases in which the employment, by its very nature or scope, creates a continuous or constantly recurring conflict between the individual's private interest and his public duties. We can find no such conflict in the present situation.

While the attorney may be asked to address his work to matters which may have an effect on his municipality, we feel that in such situations the conflict question should be reexamined as to each special circumstance. The possibility of any such disqualifications should be taken into account by the delegation in its decision on the employment. The attorney will, of course, be regulated by the Code of Professional Responsibility in his private capacity and disclosure requirements of s. 112.314(2), F. S., as amended, in his public capacity.

We therefore conclude that no prohibited conflict of interest would be created by his employment as delegation attorney, subject to appropriate consideration of special circumstances as they arise in the work you call on him to do.