CEO 78-25 -- April 20, 1978

CONFLICT OF INTEREST

CITY COUNCILMAN DISCUSSING MATTER PENDING BEFORE COUNCIL OUTSIDE OF PUBLIC HEARING WITH PRIVATE ATTORNEY WHO REPRESENTS A CLIENT IN THAT MATTER

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

Prepared by: Phil Claypool

SUMMARY:

No provision of the Code of Ethics for Public Officers and Employees, as contained in part III, Ch. 112, F. S., relates to ex parte communications between a member of a city council and a private attorney representing a client before the council. The Commission on Ethics is aware of no statutory or common law provisions regarding ex parte communications to a public officer which would prohibit a municipality from setting its own policy in this area. Section 120.66, F. S. 1977, is referenced relative to state level administrative law on the subject.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit a member of a city council from discussing a matter pending before the council outside of a public hearing on the matter with a private attorney who represents a client in that matter?

Your question is answered in the negative.

In your letter of inquiry you advise that ____ a member of the City Council of the City of ____ desires to know whether he may discuss the substance of matters pending before the city council with a private attorney involved with the matter at any time other than at a public hearing on that matter and, if he may, the nature of any limitations on such ex parte communications.

We have reviewed the substantive provisions of the Code of Ethics for Public Officers and Employees, part III of Ch. 112, F. S., and we have found no provision which directly relates to the concern of the subject council member. In addition, it appears that the Legislature did not intend the Code of Ethics to prohibit or regulate ex parte communications. During the 1975 legislative session, which substantially produced the Code of Ethics in its present form, the House Select Committee on Standards and Conduct drafted House Bill 2099. Section 10 of that bill related directly to ex parte communications and prohibited members of boards, commissions, or councils from intentionally receiving or encouraging any ex parte or other unilateral communication in regard to a pending matter when the communication was intended to influence the member. In the event that such a communication was received, the member was to place it on the record of the pending matter, together with a memorandum stating all responses to the communication. A party desiring to rebut the communication was to be allowed to do so, and the member was allowed to recuse himself, if he deemed it necessary. However, that section of House Bill 2099 was stricken during debate on the floor of the House of Representatives. Journal of the House of Representatives, May 19, 1975, p. 565.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit a member of a city council from discussing a matter pending before the council outside of a public hearing on the matter with a private attorney who represents a client in that matter.

We are not aware of any statutory or common law provisions regarding ex parte communications to a public officer which would prohibit the city from setting its own policy in this area. For reference to the state-level administrative law on this subject, see s. 120.66, F. S. 1977.