CEO 83-62 -- September 22, 1983

CONFLICT OF INTEREST

COUNTY COMMISSIONER FILING CIVIL LAWSUIT IN CAPACITY AS COUNTY COMMISSIONER

To: Mr. Robert Bruce Snow, Hernando County Attorney

SUMMARY:

The Code of Ethics for Public Officers and Employees would not be violated where two county commissioners are plaintiffs in a civil lawsuit against city commissioners and a former city engineer, and where the suit has been filed by them as county commissioners and as taxpayers. Although the commissioners have either used or attempted to use their official positions, it does not appear that the lawsuit was filed "to secure a special privilege, benefit, or exemption" in violation of Section 112.313(6), Florida Statutes. Here, the relief sought by the suit would benefit the taxpayers of the city and the county; any monetary judgment would not result in any particular private benefit for the commissioners.

QUESTION:

Is the Code of Ethics for Public Officers and Employees violated where two county commissioners are plaintiffs in a civil lawsuit against city commissioners and a former city engineer and where the suit has been filed by them as county commissioners and as taxpayers?

Your question is answered in the negative.

With your letter of inquiry you have enclosed a copy of a complaint in circuit court filed by two County Commissioners and other plaintiffs against a City, City commissioners, and a former City engineer. The complaint states that the County Commissioners are filing "as County Commissioners of Hernando County" and as City, State, and federal taxpayers. The lawsuit is filed as a class action in behalf of taxpayers of the City and the County and seeks a declaratory judgment regarding the alleged payment of tax funds to the former City engineer. The complaint also seeks an accounting, an injunction, a monetary judgment to be paid to the public treasury, and attorney fees for the plaintiffs.

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

MISUSE OF PUBLIC POSITION. -- No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes (1981).]

For purposes of this provision of the Code of Ethics, the term "corruptly" is defined as

done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(7), Florida Statutes (1981).]

As we have observed in previous opinions, such as CEO 77-129 and CEO 82-82, this statute requires a determination of intent which is extremely difficult to make while rendering an advisory opinion, since intent is to be determined by an examination of all relevant circumstances. We are able to do this when a complaint has been filed with this Commission concerning a given situation on the basis of evidence presented through investigation and hearing, but in rendering an advisory opinion we are handicapped by a lack of access to information concerning all the circumstances of the situation, as well as information concerning the credibility of the individuals involved. Therefore, we usually do not determine in an advisory opinion that Section 112.313(6), Florida Statutes, would be violated. However, we will comment briefly on the possible application of this statute to the situation you have presented.

Section 125.01(1)(b), Florida Statutes, provides that a County Commission has the power to provide for the prosecution and defense of legal causes in behalf of the County or State. In addition, Section 125.15, Florida Statutes, provides that county commissioners shall sue and be sued in the name of the county of which they are commissioners. Despite these provisions, it appears clear to us that by filing suit specifically as County Commissioners, the subject Commissioners have either used or are attempting to use their official positions. Nevertheless, it does not appear that the lawsuit was filed "to secure a special privilege, benefit, or exemption."

The relief sought by the suit would benefit the taxpayers of the City and the County; any monetary judgment would not result in any particular private benefit for the subject Commissioners. In addition, we do not perceive that any benefits received as a result of the suit would be "special" benefits. We do not understand a benefit to be "special" if one is entitled to it by law. Here, any benefits resulting from the suit would have to be granted by the courts in accordance with law.

Accordingly, we find that the Code of Ethics for Public Officers and Employees was not violated under the circumstances you have described.