CEO 81-48 -- July 16, 1981

CONFLICT OF INTEREST

CITY ATTORNEY REPRESENTING CITY FRANCHISEE BEFORE COUNTY COMMISSION

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

SUMMARY:

Reference is made to CEO 77-60, CEO 77-76, and CEO 78-65, in which it was advised that the standards of conduct of the Code of Ethics are not applicable to a person whose relationship with a governmental entity is as an independent contractor, rather than as a public officer or employee. Based upon the manner of compensation of the city attorney, the rights and benefits for which the attorney is eligible, and other circumstances of the relationship between the city and the attorney, the city attorney involved here is an independent contractor rather than an officer or employee of the city.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit you, a City Attorney, from representing a city cable television franchisee in a franchise application to a County Commission?

Your question is answered in the negative, as we find that the standards of conduct of the Code of Ethics for Public Officers and Employees do not govern your conduct as City Attorney.

In your letter of inquiry you advise that you serve as City Attorney for the City of .... on an hourly fee basis for time and services provided to the City. You question whether Section 112.313(7), Florida Statutes, would prohibit you from representing a cable television company, which has been awarded a franchise by the City, before the County Commission in a franchise application for the unincorporated areas of the county.

Section 112.313(7), Florida Statutes, provides an ethical standard of conduct for public officers and public employees, as do the other provisions of Section 112.313, Florida Statutes. Thus, in previous opinions we have advised that Section 112.313, Florida Statutes, does not apply to a person whose relationship with a governmental entity is as an "independent contractor," rather than as a public officer or employee. See, for example, CEO 77-60, CEO 77-76, and CEO 78-65.

You advise that Article VII of the .... City Charter provides that the City Commission has the authority to "[a]ppoint and remove the City Clerk, City Attorney, Municipal Judge, their alternates, and all other employees of said City." There is no other reference to the City Attorney in either the City Code or Charter. As City Attorney, you provide legal services to the City on an "as needed" basis and are expected to attend the work session and regular Commission meeting once each month. Your compensation is based upon the number of hours expended on City work, without any deductions for income or social security taxes. You are not eligible for any benefit given to City employees, such as insurance, retirement, vacation, holiday or sick leave, or bonuses. In addition to your work for the City, you maintain a law practice; all materials, equipment and books used in your service as City Attorney are provided by your law office.

Under these circumstances, we find that your relationship with the City is that of an "independent contractor" and not that of a public officer or employee. Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit the representation about which you have inquired. As an attorney, you may wish to contact The Florida Bar concerning the application of the Code of Professional Conduct, however.