CEO 79-64 -- October 17, 1979

CONFLICT OF INTEREST

FORMER CITY ATTORNEY REPRESENTING CLIENTS BEFORE OR AGAINST CITY; COUNSEL FOR DEPARTMENT OF CITY REPRESENTING CLIENTS BEFORE OR AGAINST CITY

To: Michael E. Watkins, City Attorney, Homestead

Prepared by: Phil Claypool

SUMMARY:

The Sunshine Amendment to the State Constitution prohibits legislators and statewide elected officers from representing any person or entity for compensation before their former agencies for 2 years following vacation of office. Section 8(e), Art. II, State Const. However, no section of either the Sunshine Amendment or the Code of Ethics prohibits a former city attorney from representing clients either before the city council or against the city in litigation. Neither would a prohibited conflict of interest exist were a former city attorney to be retained as special counsel to represent the city utilities department while representing other clients before the city, or in litigation against the city, not involving that department. Inasmuch as his relationship with the city would be that of an independent contractor rather than that of a public employee, he would not be subject to the provisions of the Code of Ethics; but even if he were deemed to constitute an employee subject to the code, his public agency would be the city utilities department rather than the city as a whole. See CEO's 78-33 and 79-7 in this regard.

QUESTIONS:

1. Does the Code of Ethics for Public Officers and Employees or the Sunshine Amendment to the State Constitution prohibit a former city attorney from representing clients either before the city council or against the city in litigation?

2. Would a prohibited conflict of interest be created were I to be retained as special counsel to represent the city utilities department while representing other clients before the city or in litigation against the city not involving the utilities department?

Question 1 is answered in the negative.

In your letter of inquiry you advise that you are presently employed as a part-time city attorney for the City of Homestead. You also advise that the city is going to hire a full-time city attorney. Therefore you question whether, after your employment with the city is terminated, you may represent clients either before the city council or in litigation against the city in cases in which the cause of action arose prior to the end of your employment.

The Code of Ethics for Public Officers and Employees contains no provisions which would prohibit you from representing clients either before the city council or in connection with litigation against the city. The present standards of conduct contained in the Code of Ethics were enacted in 1975 with the passage of H.B. 2099. That bill did contain a provision which would have prohibited a public officer or employee from representing clients before his former agency for a period of 2 years following the termination of his office or employment. Section 7, H.B. 2099 (1975). However, this provision was stricken from the bill by the House of Representatives before its enactment. See 1975 House Journal, p. 00564.

The Sunshine Amendment to the State Constitution provides in part:

No member of the legislature or statewide elected officer shall personally represent another person or entity for compensation before the government body or agency of which the individual was an officer or member for a period of two years following vacation of office. . . . Similar restrictions on other public officers and employees may be established by law. [Section 8(e), Art. II, State Const.]

This provision also would not apply to you, since a city attorney is neither a member of the Legislature nor a statewide elected officer. In addition, no similar restrictions on other public officers or employees have been established by law to implement this section.

Accordingly, we find that neither the Code of Ethics for Public Officers and Employees nor the Sunshine Amendment to the Constitution would prohibit you from representing clients either before the city council or in litigation against the city following your employment with the city as city attorney. You may wish to contact The Florida Bar for its opinion as to the applicability of the Code of Professional Responsibility to the situations you have outlined.

Question 2 is answered in the negative.

In your letter of inquiry you advise that, following the termination of your position as city attorney, you may be retained by the city council as special counsel to represent only the utilities department of the city. You question whether it would be permissible for you to represent other clients before the city council or in litigation against the city that does not involve the utilities department.

Your use of the term "retained" indicates that your relationship with the city might be that of an "independent contractor" rather than that of a public "employee." If such is to be the case, you would not be subject to the provisions of the Code of Ethics for Public Officers and Employees. See CEO 77-25. For your guidance as to what would be considered an independent contractual relationship, we refer you to two other advisory opinions, CEO's 78-65 and 79-24.

However, even if you were deemed to be an employee of the city, we find that the Code of Ethics would not prohibit your representation of clients before the city council or in litigation against the city in matters not involving the utilities department. In CEO 78-33, we advised that a member of a city planning and zoning commission might privately represent as an attorney city employees in grievance proceedings. In addition, in CEO 79-7, we advised that the Code of Ethics did not prohibit a city planning board member from representing clients before agencies of the city other than the planning board. Similarly, under your proposed employment as special counsel representing the city utilities department, that department, rather than the city as a whole, would constitute your agency for purposes of the Code of Ethics, and you would not be prohibited from representing clients before other city agencies or in litigation against the city not involving the utilities department.

Accordingly, we find that the Code of Ethics would not prohibit your being retained as a special counsel to represent the utilities department while representing other clients before the city council or in litigation against the city in matters not involving the utilities department. Again, we observe that you may wish to contact The Florida Bar for its opinion regarding the possibility of any professional conflict of interest arising from these circumstances.