CEO 83-57 -- July 28, 1983

CONFLICT OF INTEREST

CITY ATTORNEY'S SPOUSE REPRESENTING CITY IN TORT CLAIMS FOR INSURANCE CARRIER

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

SUMMARY:

No prohibited conflict of interest exists where the spouse of a city attorney has been appointed by an insurance carrier of the city to represent the city in tort claims. Neither Section 112.313(3) nor 112.313(4), Florida Statutes, applies here, where the insurance carrier was selected by the city through a competitive bid process and neither the city attorney nor the city administration has any input in the selection of defense counsel by the city's insurance carriers.

QUESTION:

Does a prohibited conflict of interest exist where you serve as city attorney and your spouse has been appointed by an insurance carrier of the city to represent the city in tort claims?

Your question is answered in the negative.

In your letter of inquiry you advise that since 1975 the City of Miami Beach has had insurance coverage for all tort liability. As a result, the City Attorney does not represent the City on any tort claims; defense counsel for such claims are appointed by the insurance carrier. You further advise that for a number of years prior to your recent appointment as City Attorney your husband has been appointed by one of the insurance carriers of the City to represent the City in a variety of tort claims.

In addition, you advise that your husband had absolutely no input and played no part in your selection as City Attorney. Neither the City Attorney nor the City Administration has any input into the selection of defense counsel by the City's insurance carriers, which are selected through a competitive bid process. Finally, you advise that you do not review settlement offers made by defense counsel on behalf of the insurance carriers.

The Code of Ethics for Public Officers and Employees contains only two provisions which prohibit conflicts of interest arising out of the activities of the spouse of a public officer or public employee at a local government level. Those provisions are as follows:

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.

(c) Appointment to public office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes (1981).]

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(4), Florida Statutes (1981).]

We are of the opinion that neither of these provisions would prohibit the situation which you have described.

Under Section 112.313(3), you are prohibited from acting in an official capacity to directly or indirectly purchase any services for your agency from a business entity in which your spouse has an interest. However, as you have advised that neither the City Attorney nor the City administration has any input in the selection of defense counsel by the City's insurance carriers, it is apparent that you have neither directly nor indirectly purchased the services of your husband for the City.

With respect to Section 112.313(4), we note initially that your husband represented the City in behalf of the insurance carrier before your selection as City Attorney. In addition, you have advised that the City's insurance carriers are selected by a competitive bid process. Under these circumstances, it is apparent that your husband's appointment as defense counsel by the carrier could not have been made in order to influence any official action in which you could be expected to participate.

Accordingly, we find that no prohibited conflict of interest exists by virtue of your husband's representation of the City in tort claims on behalf of an insurance carrier of the City, where you serve as City Attorney.