CEO 79-32 -- May 17, 1979

CONFLICT OF INTEREST

PUBLIC DEFENDER SERVING AS ARBITRATOR IN MATTER NOT INVOLVING HIS OFFICE

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

Prepared by: Phil Claypool

SUMMARY:

No prohibited conflict of interest would be created were a public defender to serve as a compensated arbitrator in the resolution of a contractual dispute not involving his office. No issue is raised under s. 112.313(7)(a), F. S., inasmuch as neither of the parties is doing business with the office of the public defender or is regulated by the agency; additionally, the services will not be provided on state time, and the arbitration pertains to a civil matter, while the public defender's primary function lies in the area of criminal law. Also, as it appears that neither party would have any reason to attempt to influence any official action by the public defender, no issue appears to be raised under s. 112.313(4).

QUESTION:

Would a prohibited conflict of interest be created were a public defender to serve as a compensated arbitrator in the resolution of a contractual dispute not involving his office?

Your question is answered in the negative.

In your letter of inquiry you advise that ____ has been a member of the American Arbitration Association for over 10 years, beginning prior to his election as public defender for the Twentieth Judicial Circuit. During that period he has served as an arbitrator only once. Recently, you advise, he was asked to serve as a member of a panel of three arbitrators on a claim submitted to the association regarding a dispute between a development company and a city located within the Twentieth Judicial Circuit. You further advise that the arbitration hearing is anticipated to take 1 to 2 weeks, during which ____ will take accrued annual leave, and the arbitrators will be compensated by the parties for each day of the hearing.

In a telephone conversation with our staff, you advised that ____ has no private association with either of the parties to the arbitration proceeding, and neither party is a client of the public defender's office. In addition, you advised that neither party is doing business with, or is in any way subject to regulation by, that agency.

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

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP. -- 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. [Section 112.313(7)(a), F. S. 1977.]

In our view, this provision of the Code of Ethics does not prohibit the subject public officer from serving as an arbitrator under the circumstances you have described. Neither of the parties is doing business with the office of the public defender or is regulated by that agency. The subject official will provide such services on his own time. In addition, we note that the arbitration pertains to a civil matter, while the public defender's primary function lies in the area of criminal law.

Nor do we perceive that these circumstances raise any issue under s. 112.313(4), F. S. 1977, which prohibits a public officer from accepting any compensation when he knows or, with the exercise of reasonable care, should know that it was given to influence his official action. As the parties to the arbitration are a city and a development company, it appears that neither party would have any reason to attempt to influence any official action by the subject public defender.

Accordingly, under the circumstances presented in this opinion, we find that the Code of Ethics for Public Officers and Employees does not prohibit the subject public defender from serving as a compensated arbitrator in the resolution of a contractual dispute not involving his office.