CEO 81-60 -- September 17, 1981

CONFLICT OF INTEREST

CITY ATTORNEY EMPLOYED BY LAW FIRM PROVIDING LEGAL SERVICES TO CITY

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

SUMMARY:

The Code of Ethics for Public Officers and Employees governs the conduct of public officers and employees, not the conduct of independent contractors with governmental entities. Where a law firm has been retained by a city as legal counsel, with the firm agreeing to provide one attorney to be designated as city attorney and to pay his salary, the city attorney is not a public employee. Nor is the city attorney a public officer in this instance. Therefore, the Code of Ethics would not prohibit the city attorney from being employed by a law firm, other members of which also provide legal services to the city.

QUESTION:

Does a prohibited conflict of interest exist where other members of a law firm which employs a City Attorney also provide legal services to the City?

Your question is answered in the negative, as we find that the standards of conduct of the Code of Ethics for Public Officers and Employees do not govern the conduct of the City Attorney of the City of Lakeland.

In your letter of inquiry and in supplementary information provided us by the City Manager of the City of Lakeland, we are advised that the law firm which employs the City Attorney was retained by the City of Lakeland as legal counsel in 1979. Under its agreement with the City, the law firm provides one attorney, designated as the City Attorney, who maintains an office in the City Hall and performs the vast bulk of the City's legal work, including attendance at all Commission meetings. Two other attorneys in the firm perform services for the City under the agreement on an hourly-rate basis, one almost exclusively handling electric utility matters and the other handling condemnation and real property matters for the City. In the absence of the City Attorney, one of these attorneys will attend City Commission meetings and handle any legal inquiries of a pressing nature.

The City Attorney is not considered an employee of the City; he is paid by the City directly and is not on the City payroll. Instead, he is compensated for his work through the law firm, with the City paying the law firm an amount which represents salary, occupational license, malpractice insurance premium, and payroll taxes for the City Attorney. The City Attorney does not receive the same fringe benefits from the City that employees receive, such as retirement, workers' compensation, and life insurance, although he does receive hospitalization insurance.

In previous opinions we have advised that the standards of conduct contained in the Code of Ethics for Public Officers and Employees do not apply to a person whose relationship with a governmental entity is as an "independent contractor," rather than as a public officer or public employee. See, for example, CEO 77-60, CEO 77-76, CEO 78-65, and CEO 81-48. Based upon the circumstances you have presented and the principles we have followed in the above- cited opinions, we find that the City Attorney is an employee of the law firm and not of the City. By way of contrast, we would reference the circumstances involved in opinions CEO 81-49 and 81-50, in which we found that the subject school board attorneys were clearly intended to be employees of school boards.

In some instances, a city attorney may be a public officer. For example, in AGO 069-3 the Attorney General advised that under Chapter 14591, Laws of Florida, 1929, as amended, the City Attorney of the City of Dade City appeared to be an officer of the City rather than an employee. This conclusion was based upon provisions in the Special Act which provided certain duties and responsibilities of the City Attorney. The Attorney General also considered the case of State ex. Rel. Holloway v. Sheats, 78 Fla. 583, 83 So. 508 (1919), in which the Florida Supreme Court stated: "The term 'office' embraces the idea of tenure, duration, and duties in exercising some portions of the sovereign power, conferred or defined by law and not by contract." Similarly, in AGO 070-13, the Attorney General advised that based upon the Charter of the City of South Daytona, the City Attorney's position constituted an office, as opposed to mere employment.

The Charter of the City of Lakeland provides in part:

The city commission shall appoint a city attorney who shall hold office at the pleasure of the city commission, and who shall act as the legal advisor to, and attorney and counselor for, the municipality and all its officers in matters relating to their official duties. [Div. 1, Section 25(a), City Charter.]

In addition, the Charter provides that the City Attorney is to prepare all contracts, bonds, and other instruments in writing, endorsing his approval or disapproval of the form and correctness of each; to represent the City in litigation when required to do so by the City Commission; to advise officers of the City on their powers and duties; to approve the form of all City ordinances; and to perform such other duties as might be required of him by ordinance or resolution of the City Commission. The Charter also provides that the City Attorney shall maintain an office in the City Hall and that his compensation shall be fixed by the City Commission.

While the provisions of the City Charter might be interpreted as creating a "public office" of City Attorney, to be filled by the appointment of a "public officer," it is apparent that the City has not interpreted its Charter in this manner. Minutes of the City Commission meeting at which the law firm was retained by the City indicate that the City Commission voted to hire the law firm, with one full-time attorney being provided on the firm's payroll. Clearly, the City Commission did not "appoint" a single individual to the office of City Attorney. Rather, it appears that the duties and responsibilities of the City Attorney, as well as those of the law firm, were fixed by the agreement between the firm and the City Commission instead of by the provisions of the City Charter.

Under these circumstances, although the Charter may create an "office" of City Attorney, we cannot find that the City Attorney has been appointed to hold such an office. Accordingly, as we have found that the City Attorney is not a public officer or employee, we find that he is not subject to the standards of conduct contained in the Code of Ethics for Public Officers and Employees, Part III, Chapter 112, Florida Statutes.