CEO 81-42 -- June 18, 1981

CONFLICT OF INTEREST

CITY ATTORNEY ALSO REPRESENTING CITY CIVIL SERVICE BOARD

To: Mr. Edward Paul Kreiling, City Attorney, City of Miramar

SUMMARY:

No prohibited conflict of interest exists where a city attorney who also represents the city civil service board as part of his duties represents a city official or department head bringing disciplinary charges against a city employee before the civil service board, with the board hiring another attorney as its advisor. Section 112.3145(4), Florida Statutes, would not require the filing of a quarterly client disclosure form in order to disclose the city attorney's representations of the city administration as an advocate in hearings before the civil service board.

QUESTION 1:

Does a prohibited conflict of interest exist where you, a City Attorney who also represents the City Civil Service Board, represent a City official or department head bringing disciplinary charges against a City employee before the City Civil Service Board, with the Board hiring another attorney as its advisor?

Your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advise that you have been appointed as City Attorney for the City of Miramar. As part of your responsibilities as City Attorney, you serve as attorney for the City Civil Service Board, which, in addition to other duties, has the right to hear appeals from employees who are subject to disciplinary action. Upon the filing of such an appeal, you advise, it has been your practice to temporarily relinquish your duties as attorney for the Board and to announce to the Board that you are representing the City official or department head who is bringing the charges against the employee. In these situations, you avoid giving the Board any advice with regard to the disciplinary action, and the Board hires another attorney as its advisor at hearings on the disciplinary action while you participate in the hearing as an advocate for the City administration.

The Code of Ethics for Public Officers and Employees provides in 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), Florida Statutes (1979).]

This provision prohibits you, as City Attorney, from undertaking certain employment or contractual relationships which would present you with a conflict of interest. For example, in CEO 80-26 we advised that this provision would prohibit a City Attorney from retaining a contingency fee interest in a lawsuit against the City, even though the attorney had withdrawn from the case when he became City Attorney.

Here, however, your representation of the Civil Service Board is a part of your duties as City Attorney and does not result from an employment or contractual relationship independent of that service. In this situation, we are of the opinion that neither Section 112.313(7)(a) nor any other provision of the Code of Ethics would prohibit you from representing the Civil Service Board in the manner in which you have described.

Accordingly, we find that no prohibited conflict of interest exists where you represent the Civil Service Board as City Attorney except when representing the City administration as an advocate in hearings before the Civil Service Board.

QUESTION 2:

Does the Code of Ethics for Public Officers and Employees require the filing of a disclosure form in order to disclose your representations of the City administration as an advocate in hearings before the City Civil Service Board?

This question is answered in the negative.

Section 112.3145(4), Florida Statutes, requires each "local officer" to file a quarterly report of the names of clients represented for a fee or commission before agencies at his level of government. We have promulgated CE Form 2, Quarterly Client Disclosure, for use in complying with this provision of the Code of Ethics.

As City Attorney, you are a "local officer." Section 112.3145(1)(a)3, Florida Statutes. However, Section 112.3145(4) excludes from its disclosure requirements certain types of representations, including "representations on behalf of one's agency in his official capacity." In our view, your representation of City officials and department heads as an advocate for the City administration in hearings before the Civil Service Board constitutes a representation on behalf of your agency in your official capacity as City Attorney.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not require you to file any form disclosing your representations of the City administration in hearings before the City Civil Service Board.