CEO 79-38 -- July 2, 1979

CONFLICT OF INTEREST

ATTORNEY RETAINING ASSOCIATION WITH LAW FIRM WHILE SERVING AS DIRECTOR OF DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS

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

Prepared by: Phil Claypool

SUMMARY:

No prohibited conflict of interest under the Code of Ethics would be created were a practicing attorney and member of a law firm to accept temporary employment as the Director of the Division of Florida Land Sales and Condominiums of the Department of Business Regulation while continuing his association with the law firm when neither the attorney/appointee nor his law firm presently represents any clients before the division, has represented a client before the division for several years, or contemplates representing any clients before the division in the future. Although s. 112.313(7)(a), F. S. 1977, prohibits a public employee from having employment or a contractual relationship with a business entity doing business with or subject to the regulation of his public agency, neither the law firm nor any of its clients are engaged in such association with the division. Therefore, the continuation of the appointee's relationship with the law firm and its clients would not be proscribed by this provision so long as the time necessary for private business would not impede the discharge of his duties as division director.

QUESTION:

Would a prohibited conflict of interest be created were I, a practicing attorney and member of a law firm, to accept employment as the Director of the Division of Florida Land Sales and Condominiums of the Department of Business Regulation while continuing my association with the law firm, when the firm does not represent any client before the division?

Your question is answered in the negative.

In your letter of inquiry you advise that you are contemplating accepting the position of Director of the Division of Florida Land Sales and Condominiums of the Department of Business Regulation for a period not to exceed 1 year. You also advise that you are presently a member of a law firm and that you intend to maintain an association with that firm if you become director of the division. Specifically, you would continue to hold stock in the firm and serve as director and officer; you would participate regularly in firm meetings and policy decisions, either in person or by telephone; you would consult routinely and regularly with other members of the firm concerning management of the firm, professional problems, and pending matters, as well as the areas of the firm's practice in which you have been most heavily involved; you would consult with clients upon their request concerning pending matters in which you have been involved; and you would receive compensation from the firm.

You advise that your consultation with members of the firm and with clients would be on a regular basis, but would take place exclusively during nonworking hours so as not to interfere with your position as director of the division. Finally, you advise that neither you nor the firm contemplates representing any clients before the division, is currently representing any client before the division, or has represented a client before the division for several years.

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.]

Neither your law firm nor any of its clients are doing business with or are subject to the regulation of the division. Therefore, in our view, the continuation of your relationship with the law firm and its clients which you have described would not be proscribed by this provision, so long as the time necessary for your private business would not impede the full discharge of your duties as Director of the Division of Florida Land Sales and Condominiums.

Accordingly, so long as the time necessary to continue your association with the law firm as contemplated would not impede the discharge of your duties as Director of the Division of Florida Land Sales and Condominiums, we find that no prohibited conflict of interest would be created were you to accept that position while continuing your association with the law firm.