CEO 77-76 -- May 19, 1977

CONFLICT OF INTEREST

ATTORNEY RETAINED TO REPRESENT COUNTY IN CIVIL ACTIONS REPRESENTING PRIVATE CLIENTS BEFORE COUNTY AGENCIES AND AGAINST COUNTY IN CONDEMNATION CASES

To: (Name withheld at the person's request.)

Prepared by: Phil Claypool

QUESTION:

Would a prohibited conflict of interest exist were an attorney who has been retained by a county to represent that county in two civil actions to represent private clients in matters before county agencies, in appeals from county agency determinations, or in condemnation cases brought by the county?

Your question is answered in the negative.

In your letter of inquiry you have stated that the Citrus County Board of County Commissioners has requested you to seek an advisory opinion from the Commission on Ethics as to the propriety of a contract for services between an attorney, Mr. John Russell, and the board. Pursuant to that contract, Mr. Russell will represent Citrus County in two civil actions on the condition that he is not precluded from representing private clients before the board of county commissioners, the county planning and zoning board, or the county zoning board of adjustment; in appealing the decisions of these boards; or in condemnation cases brought by the county. The contract also states that Mr. Russell will withdraw from representing the county should the Commission on Ethics determine that the above types of representation of private clients would constitute conflicts of interest.

Your question turns on whether the subject attorney is a "public officer" or "public employee" for purposes of the Code of Ethics. In our view, the attorney's role is that of an independent contractor rather than an officer or employee of the county. Enclosed please find three precedent opinions of this commission (CEO's 74-6, 75-17, and 76-29), the rationales of which are applicable to your inquiry.

Accordingly, as an independent contractor, the subject attorney is not bound by the Code of Ethics for Public Officers and Employees and, therefore, we find that the Code of Ethics does not prohibit his representation of private clients before county agencies, in appeals from county agency determinations, or in condemnation cases brought by the county while he is representing the county in two civil actions.

Please note that the Commission on Ethics has no jurisdiction to determine the propriety of an attorney's actions under the Code of Professional Responsibility; for such a determination the subject attorney should contact The Florida Bar.