CEO 81-66 -- September 17, 1981

CONFLICT OF INTEREST

LAW FIRM OF MUNICIPAL DEVELOPMENT AUTHORITY RETAINED BY MUNICIPALITY

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

SUMMARY:

No prohibited conflict of interest exists where a member of a municipal development authority created by Special Act of the Legislature is a shareholder in a law firm which has been retained by the municipality to represent it in labor relations matters. Section 112.313(7), Florida Statutes, which prohibits a public officer from being employed by a business entity which is doing business with his agency, would not prohibit a member of a municipal development authority from being employed by a law firm which is doing business with the city council, which is a separate agency from the authority. Section 112.313(3), Florida Statutes, prohibits a public officer from acting in a private capacity to sell any goods or services to the political subdivision in which he serves or to any agency of that political subdivision. However, this Section would not apply where the development authority is not responsible for the approval of or the giving of advice or recommendation as to the city's purchase of legal services. CEO's 76-134, 78-66, 80-33 and 80-29 are referenced in this regard.

QUESTION:

Does a prohibited conflict of interest exist where a member of a Municipal Development Authority created by special act of the Legislature is a shareholder in a law firm which has been retained by the municipality to represent it in labor relations matters?

Your question is answered in the negative.

In your letter of inquiry you advise that since December of 1974 your law firm has been retained by the City of Tampa under a succession of contracts to represent the City in the field of collective bargaining and labor law and practice. Under these contracts, the firm has provided various legal services for the City, including the handling of representation cases, negotiations of collective bargaining contracts, processing of unfair labor charges, arbitrations, and general advice and counsel in the area of labor relations. The firm has not provided and does not provide any services for the Tampa Downtown Development Authority, you advise.

You also advise that a shareholder in the law firm has been appointed to serve on the Tampa Downtown Development Authority. This Authority, you advise, was created in June of 1976 by a special act of the Legislature, Chapter 76-496, Laws of Florida. Pursuant to that Act, the Authority is a body politic and corporate and an independent agency of the City created for the general purpose of planning, coordinating, and assisting in the implementation of development and revitalization of the downtown area of the City. Six members of the Authority are appointed by the Mayor and confirmed by the City Council, with the seventh member being a member of the Council. Members of the Authority serve without compensation. Under Chapter 76-496, the Authority has been authorized to participate in the planning of development and redevelopment of the downtown area, to coordinate development by public and private enterprises, to construct and operate public projects, to exercise the power of eminent domain subject to approval by the Council, and to issue bonds upon approval by the Council, among other powers and duties.

The Code of Ethics for Public Officers and Employees provides:

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 a public officer from being employed by a business entity which is doing business with his agency. As a member of the Development Authority, the Authority is the "agency" of the subject Authority member. See Section 112.312(2), Florida Statutes, defining the term "agency," and CEO 81-29, a copy of which is enclosed, in which a similar determination was made with respect to a city charter board. However, the law firm is not doing business with the Development Authority, but rather with the City Council, in providing its labor relations services.

Section 112.313(7)(a) also prohibits a public officer from having a contractual relationship with an agency which is subject to the regulation of, or is doing business with, his agency. In CEO 80-79, we found that an attorney has a contractual relationship with each client of his law firm. However, here the client of the firm (the City Council) is not subject to the regulation of or doing business with the Development Authority.

The Code of Ethics also provides:

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1979).]

This provision prohibits a public officer from acting in a private capacity to sell any goods or services to the political subdivision which he serves or to any agency of that political subdivision. In previous opinions we have advised that this provision would not prohibit a member of a subordinate board of a political subdivision from selling services to agencies of the political subdivision other than the agency of which he is a member, so long as the subordinate board member is not responsible in any manner for the approval of or the giving of advice or recommendations as to the purchase of services. See CEO 81-29, CEO 80-33, CEO 78-66, and CEO 76-134, copies of which are enclosed. As the Development Authority is not responsible for the approval of or the giving of advice or recommendations as to the City's purchase of legal services in the area of labor relations, we find that the rationale of these opinions applies equally to the situation you have presented.

Accordingly, we find that no prohibited conflict of interest exists where the subject member of the Development Authority is a shareholder in a law firm retained by the City to represent it in labor relations matters.