CEO 76-163 -- September 13, 1976

CONFLICT OF INTEREST

TOWN ATTORNEY SITTING ON TOWN COUNCIL

To: J. B. Walkup, Jr., McIntosh Town Attorney, Ocala

Prepared by: Gene Rhodes

SUMMARY:

Florida Statute s. 112.313(1)(a)(1975) provides that an employee of a political subdivision may not serve as a member of the governing board which is his employer while continuing to hold such employment. Where one offers his services as town attorney without salary or other compensation, however, he does not constitute an employee of the town. Accordingly, he is not prohibited from accepting appointment to the town council while continuing to serve as town attorney on a pro bono basis.

QUESTION:

Would a prohibited conflict of interest be created were I to simultaneously serve voluntarily as the town attorney and to sit as an appointed member of the town council?

This question is answered in the negative.

Your letter of inquiry advises us that you now serve as town attorney on a voluntary basis. That is, you give the town your services as they are needed without salary or other compensation. You have been asked to accept appointment to the town council to fill a current vacancy.

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

EMPLOYEES HOLDING OFFICE. -- No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his employer while, at the same time continuing as an employee of such employer. [Fla. Stat. s. 112.313(10)(a)(1975).]

As you can see, this section prohibits an employee of a municipality from holding office as a member of the governing council which is his employer. This question, therefore, turns on whether you are an employee of the town. For purposes of the Code of Ethics for Public Officers and Employees, it is our view that one who volunteers his services to a municipality is not an employee of that municipality. See also CEO 76-21, wherein a state official contributing his services to teach a course at a state university was not held to be "employed" by the university. Consequently, you are not prohibited from simultaneously sitting on the town council and voluntarily serving as town attorney.

Please note that this commission has no jurisdiction to decide issues of professional ethics.