CEO 79-22 -- April 18, 1979

CONFLICT OF INTEREST

ATTORNEY CONSULTING WITH COUNTY PRIVATELY PROVIDING FREE LEGAL REPRESENTATION TO COUNTY COMMISSIONER IN PERSONAL MATTER

To: John D. Demmi, Consulting Attorney for Hillsborough County, Tampa

Prepared by: Phil Claypool

SUMMARY:

Reference is made to CEO 77-76. The Code of Ethics for Public Officers and Employees does not apply to a person whose legal status is that of an independent contractor with a public agency rather than a public employee. Accordingly, the standards of conduct provisions of the Code of Ethics do not apply to an attorney who provides legal service to a county on a contractual basis whereby he bills the county on an hourly basis with no deductions for benefits, taxes, or social security.

When such consulting attorney provides legal representation, free of charge, to a county commissioner in a private matter, based on a longstanding friendship between the two, the commissioner does not have a conflict of interest under s. 112.313(2)(b) or (4), F. S., inasmuch as there is no understanding between the two that the commissioner's official duties will be influenced in any manner thereby. Because the representation will be provided gratis, neither is there a conflicting contractual relationship in violation of s. 112.313(7). Under the facts presented, therefore, no prohibited conflict of interest would be created by the county commissioner's acceptance of free legal representation by a consulting attorney for the county in a private matter. However, attention is called to the possibility that such relationship may be viewed by the public as presenting the appearance of a conflict of interest, as the commissioner may be seen as the attorney's employer.

QUESTIONS:

1. Does the Code of Ethics for Public Officers and Employees prohibit me, a consulting attorney for Hillsborough County, from providing free legal representation to a county commissioner in a private matter?

2. Would a prohibited conflict of interest be created were a county commissioner to accept free legal representation in a private matter from a consulting attorney for the county?

This question is answered in the negative, as we find that the Code of Ethics for Public Officers and Employees does not govern your conduct as a consulting attorney for the county.

In your letter of inquiry you advise that for approximately 6 years you have provided legal services for Hillsborough County. Until 2 years ago both you and your legal secretary were considered employees of the county, being paid a specific amount per year, with deductions from your pay for insurance and retirement. Since that time, you have been put on a contractual basis: when the county requires expertise in trial work, you are asked to provide your services, and you bill the county on an hourly basis with no deductions being made. In addition, you advise that you presently have an independent legal practice.

The Code of Ethics for Public Officers and Employees contains standards of conduct for public officers, public employees, and candidates for public office. Part III, Ch. 112, F. S. We previously have advised that the Code of Ethics does not apply to a person whose legal status is that of an independent contractor with a public agency, rather than a public employee. See CEO 77-76. As your situation is substantially the same as that of the attorney referenced in that opinion, we find that you are an independent contractor with the county and not a county employee.

Accordingly, we find that the standards of conduct provisions of the Code of Ethics for Public Officers and Employees do not apply to you as a consulting attorney for the county. Any question you may have concerning the propriety of your professional activities should be addressed to The Florida Bar.

In your letter of inquiry and in a telephone conversation with our staff, you advise that Mr. Robert E. Curry, a member of the Hillsborough County Commission, has been a close personal friend of yours for many years. Recently, you advise, he has needed legal representation in a private matter, and you have offered to represent him free of charge because of your longstanding friendship.

As to question 2, the Code of Ethics for Public Officers and Employees provides in relevant part as follows:

(2) SOLICITATION OR ACCEPTANCE OF GIFTS. -- No public officer or employee of an agency or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service:

(b) That is based upon any understanding that the vote, official action, or judgment of the public officer, employee, or candidate would be influenced thereby.

(4) UNAUTHORIZED COMPENSATION. -- No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity. [Section 112.313(2)(b) and (4), F. S. 1977.]

In a telephone conversation with our staff, you advised that your legal services have not been offered on the basis of any understanding with the subject county commissioner, no promises have been made, and there has been no reference to any official action that he might take in the future. You also stated that your contract with the county, entered into 2 years ago, is not renewed periodically by the county commission but can be terminated by either party with appropriate notice. On the basis of these facts, we cannot find that the above-quoted provisions of the Code of Ethics would be violated by your representation of the subject county commissioner.

The Code of Ethics also provides, in s. 112.313(7)(a), that no public officer shall have a contractual relationship with a business entity which is doing business with his agency and that no public officer shall have a contractual relationship which would impede the full and faithful discharge of his public duties. As your legal services will be provided gratis, we find that the subject county commissioner will not have a contractual relationship with you. Therefore, s. 112.313(7)(a) does not apply.

Accordingly, under the facts presented here, we find that no prohibited conflict of interest would be created by the subject county commissioner's acceptance of free legal representation by you, a consulting attorney for the county, in a private matter. However, we feel you should consider the possibility that it may be viewed by the public as presenting the appearance of a conflict of interest, as the subject county commissioner may be seen as your employer. In addition, please note that we previously have advised that your representation need not be disclosed as a gift when the subject county commissioner files his annual statement of financial interests. See CEO 78-40 for a more thorough explanation.