CEO 87-74 -- September 16, 1987

CONFLICT OF INTEREST

CITY UTILITIES AUTHORITY ATTORNEY

LEASING BUILDING TO AUTHORITY

To: Mr. Charles R. P. Brown, Attorney for Fort Pierce Utilities Authority

SUMMARY:

An attorney who is retained by a city utilities authority as an independent contractor is not prohibited by the Code of Ethics for Public Officers and Employees from leasing a building which he owns to the authority. The Commission previously has advised that the standards of conduct of the Code of Ethics are not applicable to a person whose relationship with a governmental entity is as an independent contractor, rather than as a public officer or employee. CEO's 81-48, 80-47, 79-22, and 77-76 are referenced.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit you, an attorney for a city utilities authority, from leasing a building which you own to the authority?

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 your conduct as attorney for the Utilities Authority.

In your letter of inquiry you advise that you serve as Attorney for the Fort Pierce Utilities Authority. In that capacity, you prepare and review resolutions, contracts, and agreements to which the Authority is a party, represent the Authority in any litigation, serve as legal counsel in all other matters, and assist where specialized legal counsel may be required. You advise that you always have maintained your own office and that you are compensated by the Authority on a retainer basis plus additional compensation for litigation and for hearings before the civil service board. No withholding for income tax purposes is taken from your compensation, and you have not been permitted to become a member of the pension and retirement fund. The Authority does not furnish you with an office or secretary at the expense of the Authority, but does reimburse you for out-of-pocket expenses made on behalf of the Authority.

Finally, you advise that you have an active legal practice outside of the scope of your work for the Authority. As the Authority is interested in renting a building which you and your wife own, because of the Authority's need for additional space, you question whether you come within the provisions of Sections 112.313(3) and (12)(b), Florida Statutes.

Section 112.313(3), Florida Statutes, provides an ethical standard of conduct for public officers and public employees, as do the other provisions of Section 112.313, Florida Statutes. Therefore, in previous opinions we have advised that Section 112.313, Florida Statutes, does not apply to attorneys or other persons whose relationship with a governmental entity is as an "independent contractor," rather than as a public officer or employee. See, for example, CEO 77-76, CEO 79-22, CEO 80-47, and CEO 81-48.

Based on the rationale of these previous opinions, we find that your relationship with the Utilities Authority is that of an "independent contractor" and not that of a public officer or employee. Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit you from leasing a building to the Utilities Authority. However, you may wish to contact the Florida Bar concerning your responsibilities as an attorney in this situation.