CEO 80-12 -- February 21, 1980

CONFLICT OF INTEREST

CITY COMMISSIONER EMPLOYED BY LAW FIRM REPRESENTING CLIENTS IN SUITS AGAINST CITY OR REPRESENTING CLIENT ARRESTED BY MUNICIPAL POLICE OFFICER

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

Prepared by: Phil Claypool

SUMMARY:

The second clause of s. 112.313(7)(a), F. S., prohibits a public officer from having any employment that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. This mandate would be violated were a city commissioner to be employed as an attorney by a law firm which represents clients in suits filed against the city. As a named defendant in litigation with possible personal liability, the subject commissioner has an interest in prevailing in the litigation while, in his private capacity as an employee of the law firm representing the plaintiff, he would have an interest in seeing that the plaintiff prevailed. Even in suits where he might not be personally liable, his regard for his private interests as an employee of the law firm representing a plaintiff against the city is completely incompatible with proper regard for his public duties as a commissioner.

However, s. 112.313(7)(a), F. S., would not prohibit the subject commissioner from being employed as an attorney in the representation of defendants in criminal cases, even though a suit may be filed against the city arising out of a municipal police officer's having made the arrest or being a principal witness for the state. Here, the city has no direct stake in the outcome of the criminal matter, and the commissioner would not be employed by a firm which would represent a client in any suit against the city.

QUESTIONS:

1. Would a prohibited conflict of interest be created were a city commissioner to be employed as an attorney by a law firm which represents clients in suits filed against the city?

2. Would a prohibited conflict of interest be created were a city commissioner to be employed as an attorney in the representation of defendants in criminal cases when a municipal police officer made the arrest or is a principal witness for the state?

Question 1 is answered in the affirmative.

In your letter of inquiry and in a telephone conversation with our staff, you advise that ____, a member of the Belle Glade City Commission, has been offered a position with a legal services corporation which recently has filed a suit against the city in behalf of a client. You further advise that the organization has filed about 30 law suits against the city over the past 10 to 11 years, most of which have been civil rights cases filed under s. 1983 of Title 42, U.S.C. Under this type of proceeding, a city commissioner may be held personally liable for damages.

In addition, you advise that the city has a commission/manager form of government, with the city commission establishing policy and the city manager administering that policy. Finally, you advise that, as city attorney, you are retained by the city commission to do work for the commission, including the defense of all suits against the city to the extent that they are not defended by an insurance carrier.

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.]

The first portion of this section prohibits a public officer from being employed by a business entity which is subject to the regulation of his agency or which is doing business with his agency. Under the circumstances you have described, it does not appear that the legal services corporation is subject to the regulation of the city; nor does it appear that it is doing business with the city.

The second portion of the above-quoted provision prohibits a public officer from having any employment that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. In our view, the employment proposed by the subject city commissioner would violate this prohibition so long as the legal services corporation was representing a client in a suit filed against the city. In CEO 78-33, we found that this provision would not prohibit a planning and zoning commission member from representing city employees as an attorney in grievance proceedings, on the ground that the commission member's regard for his private interests in representing dismissed city employees would not tend to lead to disregard of his public duties as a member of the commission. Here, however, the subject commission member, as a named defendant in litigation with possible personal liability, has an interest in prevailing in the litigation; in his private capacity as an employee of the law firm representing the plaintiff, he would have an interest in seeing that the plaintiff prevailed. Even in suits against the city in which the commission member might not be personally liable, he still would have a strong interest in seeing that the city prevailed in litigation, as a member of the city body which has ultimate responsibility for the conduct of the city's affairs. In other words, the subject commission member's regard for his private interests as an employee of the law firm representing a plaintiff against the city is completely incompatible with proper regard for his public duties as a commissioner.

Accordingly, we find that a prohibited conflict of interest would be created were a city commissioner to be employed as an attorney by a law firm which represents clients in suits filed against the city.

Question 2 is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advise that the subject city commissioner also has been offered employment with a private attorney who does misdemeanor criminal work, including the representation of defendants accused of violating municipal ordinances. In such cases, you advise, a city police officer may be involved as a witness or as the arresting officer. As a result, there is the possibility that in some of these cases the city might be sued as a defendant in a civil action for malicious prosecution or for false arrest.

Section 112.313(7)(a), F. S., quoted above in our response to your first question, also is relevant to this question. However, it is our opinion that this provision would not prohibit the subject commissioner from representing defendants in criminal matters even though a suit may be filed against the city arising out of facts related to the criminal case. Here, the city has no direct stake in the outcome of the criminal matter. As noted above, the subject commissioner could not be employed by a firm which would represent the client in such a suit against the city.

Accordingly, we find that no prohibited conflict of interest would be created were a city commissioner to be employed as an attorney in the representation of defendants in criminal cases when a municipal police officer made the arrest or is a principal witness for the state.