CEO 83-38 -- June 16, 1983

CONFLICT OF INTEREST

CITY COMMISSIONER PARTNER IN LAW FIRM REPRESENTING CITY HOUSING AUTHORITY

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

SUMMARY:

No prohibited conflict of interest exists where a law partner of a recently elected city commissioner represents the city housing authority and has done so for several years. The "grandfather" provision of Section 112.313(3)(b), Florida Statutes, would apply, and no continuing or frequently recurring conflict of interest otherwise would be created because of the independence of the housing authority from the city.

QUESTION:

Does a prohibited conflict of interest exist where a law partner of a recently elected city commissioner represents the city housing authority?

Your question is answered in the negative, under the circumstances you have presented.

In your letter of inquiry you advise that Mr. Robert F. Apgar recently was elected to the City Commission of the City of DeLand. You also advise that the Commissioner is a partner in a law firm, another partner of which represents the DeLand Housing Authority. You advise that the partner has never represented the Housing Authority before the City Commission and, in a telephone conversation with our staff, you advised that he has represented the Housing Authority for at least the past five years.

In addition, you advise that the Housing Authority is a completely autonomous agency, which does not receive any direct financial assistance from the City. Although the City Commission does appoint the members of the Housing Authority upon recommendation of the Authority Board, the City Commission cannot influence or direct any action of the Housing Authority and has no control over the hiring or firing of the Authority's attorney or Executive Director. However, you advise that the City does own the land on which the Housing Authority project is located.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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 (1981).]

Although this provision prohibits a public officer from acting in a private capacity to sell any services to any agency of the political subdivision which he serves, it is apparent that the "grandfather" provision of Section 112.313(3)(b) would apply in this situation, as the subject Commissioner's law partner has been representing the Housing Authority for at least five years.

The Code of Ethics also 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 (1981).]

In our view, the subject Commissioner has a contractual relationship with the Housing Authority; we previously have advised in CEO 80-79 that each attorney in a law firm has a contractual relationship with each client of that firm. However, in CEO 81-25 we found that a housing authority is not subject to the regulation of a city commission by virtue of the power to appoint housing authority members. Nor does it appear that the Housing Authority would be considered to be "doing business with" the City by virtue of its use of City land for the Housing Authority project. See CEO 81-77, Question 2, regarding intergovernmental contracts. Finally, because the Housing Authority functions separately and independently from the City, we do not perceive any frequently recurring conflict of interest or impediment to the full and faithful discharge of the subject Commissioner's public duties by virtue of his law partner's representation of the Housing Authority.

Accordingly, we find that no prohibited conflict of interest is created where a law partner of the subject City Commissioner continues to represent the City Housing Authority.