CEO 78-63 -- September 8, 1978

CONFLICT OF INTEREST

CITY COMMISSIONER EMPLOYED AS ASSISTANT PUBLIC DEFENDER

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

Prepared by: Phil Claypool

SUMMARY:

Although s. 112.313(7)(a), F. S. 1977, prohibits a public officer from holding employment with an agency subject to the regulation of the agency of which he is an officer, this provision is not violated where a city commissioner is employed as an assistant public defender because the office of public defender is not subject to the regulation of a city commission. Section 112.313(7)(a) further provides that a public officer may not hold any employment which creates a continuing or frequently recurring conflict with his public duties or interferes with the full and faithful discharge of his public duties. Although it could be argued that a conflict would be created in that, in his capacity as an assistant public defender, the individual would have occasion to challenge the validity of city ordinances, in our system of jurisprudence it is the court which determines the validity of any law or ordinance. Also, in the instant case the chief law enforcement official is independent of the city commission, thus obviating the possibility of a conflict with the commissioner's employment as an assistant public defender. Accordingly, said employment is not deemed to create a continuing or frequently recurring conflict or to impede the discharge of the city commissioner's public duties, and no prohibited conflict of interest exists under the Code of Ethics.

QUESTION:

Would a prohibited conflict of interest be created were a city commissioner to be employed as a full- time assistant public defender?

Your question is answered in the negative.

In your letter of inquiry you advise that the office of Public Defender for the ____ Judicial Circuit of Florida is considering hiring an attorney, ____. You also advise that ____ is an elected city commissioner of the City of ____, which is a municipality located in ____ County. You advise that if ____ is hired as an assistant public defender, his responsibilities would include the total legal representation of indigent clients charged with felonies, misdemeanors, and traffic offenses. As a result, it is likely that he would represent clients from the ____ area who were arrested by ____ policemen.

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

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), F. S. 1977.]

We must determine whether the subject city commissioner, a public officer, would have a conflicting employment or contractual relationship under this section because of his employment as an assistant public defender.

It is apparent that the office of Public Defender for the ____ Judicial Circuit is not subject to the regulation of the city commission. See, generally, part II, Ch. 27, F. S. As you have advised our staff in a telephone conversation that the city provides none of the funding of the public defender's office, that office could not be considered to be doing business with the city.

Therefore, the remaining question which we must consider is whether the subject commissioner's employment would create a continuing or frequently recurring conflict between his interests as assistant public defender and his public duties as a member of the city commission, or whether his employment would impede the full and faithful discharge of his public duties as a member of the city commission. We see only two areas where a conflict of interest possibly may arise. The first relates to a city commissioner's responsibility in passing ordinances which would be enforceable by criminal penalties, whereas in conscientiously representing the interest of a client, an assistant public defender would be required to challenge the validity of some of these ordinances. We perceive no conflict between these two roles because in our system of jurisprudence the court, an independent, intervening body, determines the validity of any ordinance. Carried to its furthest extremes, finding a conflict of interest between these two roles would have the absurd result of prohibiting any attorney from serving as a member of a legislative body.

The second area of potential conflict concerns the relationship between the city commission and the officer charged with the responsibility of enforcing city ordinances. In this respect, you have advised that the sheriff of the subject city is an elected official whose responsibilities and decisions are entirely independent of the city commission. In a telephone conversation with our staff, you advised that the only control exercised by the city commission over the sheriff is through the approval or rejection of the sheriff's budget, and that once the commission has approved this budget, the sheriff has complete discretion as to how the moneys are to be spent. Again, we see no conflict of interest in this situation which would prohibit the subject commissioner from acting as an assistant public defender. In this respect, we note that, if employed as an assistant public defender, the subject city commissioner would not even be presented with a voting conflict of interest sufficient to require the disclosure of his conflict when voting on the sheriff's budget. Section 112.3143, F. S. 1977.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit a city commissioner from being employed as an assistant public defender.