CEO 76-63 -- March 16, 1976

CONFLICT OF INTEREST

TOWN ATTORNEY RETAINED BY CORECEIVER REPRESENTING PROPERTY OWNERS

To: Burton B. Loebl, Town Attorney, Surfside

Prepared by: Bonnie Johnson

SUMMARY:

A recently appointed town attorney is not prohibited by Fla. Stat. s. 112.313(7)(1975) from representing in his private capacity a coreceiver for unit owners in litigation between parties in a condominium project even though the town previously litigated with the builder of the project. In the earlier litigation, the town was represented by the subject town attorney's predecessor in office, and such litigation has been concluded. Further, the town's regulatory authority over businesses is strictly limited to the enactment of laws and ordinances and accordingly is exempted under the provisions of s. 112.313(7)(a)2.(1975).

QUESTION:

As town attorney, am I prohibited by the Code of Ethics for Public Officers and Employees from representing a coreceiver for unit owners in litigation between lender, developer, contractors, and unit owners of a condominium project where the town previously litigated with the builder of the project?

Your question is answered in the negative.

You inform us in your letter of inquiry that you were appointed town attorney early in 1975. Prior to your appointment, the town litigated with the builder of a condominium project regarding certain phases of construction. Your predecessor in office represented the town in this suit through the final hearing conducted in 1974. The suit was decided adversely to the town, and no appeal was taken. Recently lender, developer, contractors, and unit owners of the condominium project have engaged in litigation and a coreceivership has been established between representatives of the unit owners and the developer. The coreceiver for the unit owners has requested that you represent him as attorney in this pending action.

The Code of Ethics for Public Officers and Employees provides in relevant part:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. --

(a) No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties . . . . [Fla. Stat. s. 112.313(7)(1975).]

This provision would appear to be violated in the instant situation inasmuch as, strictly speaking, a town regulates all entities doing business within its limits. The above-quoted section goes further to provide, however:

When the agency referred to is a legislative body and the regulatory power over the business entity resides in another agency, or when the regulatory power which the legislative body exercises over the business entity or agency is strictly through the enactment of laws or ordinances, then employment or contractual relationship with such business entity by a public officer or employee of a legislative body shall not be prohibited by this subsection or be deemed a conflict. [Fla. Stat. s. 112.313(7)(a)2.(1975).]

Accordingly, your representation of the subject coreceiver does not present a conflict on the basis of the town's regulatory authority over businesses in general. Inasmuch as litigation between the town and the condominium builder is now completed, neither do we perceive a continuing or recurring conflict between private interest and public duty in the situation described herein.