CEO 89-39 -- September 14, 1989

CONFLICT OF INTEREST

MEMBER OF COUNTY CONSUMER PROTECTION BOARD REPRESENTING INDIVIDUALS CITED BY THE BOARD IN CIRCUIT COURT ON RELATED MATTERS

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

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, if a member of a county consumer protection board were to represent clients in circuit or county court challenging an order of the Board or an accusation by the county that a cease and desist order of the board panel had been violated. Representing a client in such a case would impede the full and faithful discharge of a board member's public duties and would constitute a contractual relationship with a business entity which would be subject to the regulation of the board.

QUESTION:

Would a prohibited conflict of interest be created were you, an attorney who is a member of a County Consumer Protection Board, to represent a client in court challenging an order entered by a panel of the Board or a County accusation that the client had violated a cease and desist order entered by a Board panel?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you are a member of the Broward County Consumer Protection Board. The Board meets on a bi-monthly basis to discuss policies, changes, and proposals for changes to consumer protection legislation and ordinances. The Board also discusses the functions of members while they serve on hearing panels, as explained below. Individual cases are discussed only when the panels have concluded their hearings on the cases.

You also advise that the Broward County Consumer Affairs Division receives, investigates, and prosecutes violations of the Broward County Code relating to consumer affairs. When the Division prosecutes a matter, its staff attorney serves as a prosecuting attorney. The party charged by the Division may defend himself pro se or retain his own attorney. Alleged violations are prosecuted before a hearing panel which is composed of three members of the Broward County Consumer Protection Board. This panel may impose fines for violations and issue cease and desist orders to enjoin future repetitions of the same violation.

The Board technically has been granted the power to enforce orders imposing a fine or a cease and desist order. In reality, you advise, the Board is no longer involved. These orders are enforced by the County Attorney on behalf of the County in either county or circuit court.

You also state that you are an attorney. You wish to know if a prohibited conflict of interest would be created under the Code of Ethics for Public Officers and Employees if you were to represent a client challenging the validity or extent of an order entered by a Consumer Protection Board panel in circuit or county court. You also wish to know whether you are prohibited from representing a client accused of violating a cease and desist order entered by a Consumer Protection Board panel in circuit or county court, while acknowledging the validity of the order.

We are of the opinion that Section 112.313(7)(a), Florida Statutes, would be violated were you to represent a client in either of the two situations you have described. That Section provides:

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.

This statutory section prohibits you from having a contractual or employment relationship which creates a frequently recurring or continuing conflict between your private interests and public duties or which would impede the full and faithful discharge of your public duties. We believe that your private interest in representing a client who is challenging or seeking relief from County action in regard to an order entered by a panel of the Board is totally incompatible with your duties as a Board member to determine and punish violations of the Broward County Code as it relates to consumer affairs and with the Board's interest in seeing that its orders are upheld and enforced. We believe that this type of representation would impede the proper performance of your public duties as a member of the Board and, if it occurred on a continuing basis, would also create a frequently recurring conflict.

As noted in your request for an opinion, in CEO 82-7 we determined that a prohibited conflict of interest would be created if a mayor's law firm represented clients in claims against the city. In that opinion, we stated that an official's regard for his private interests as an employee of the law firm would be "completely incompatible" with his regard for his public duties. We feel that the analysis of that opinion is applicable to the situations you have described, in that the proper regard for your public duties as a member of the County Consumer Protection Board Panel and the regard for your private interests as an attorney representing a client in a matter concerning an order entered by a Board panel are not compatible.

Section 112.313(7)(a) also prohibits you from having a contractual relationship with any entity which is subject to the regulation of your agency, the Consumer Protection Board. We are of the opinion that as long as a client is involved in the hearing process before a panel of the Consumer Protection Board, or his future action is restricted by an order entered by such a panel, that client is subject to the regulation of your agency. Only when the matter has been concluded so that the Board or County need not take any further action to ensure compliance is the client no longer "regulated" by the Board within the meaning of Section 112.313(7)(a), Florida Statutes. See CEO 81-77 and CEO 81-20. Therefore, we are of the opinion that representing a client under the circumstances that you have described would violate the prohibition in Section 112.313(7)(a) against having a contractual relationship with an entity subject to the regulation of your agency.

Accordingly, we find that a prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were you to represent clients in circuit or county court challenging the validity or extent of an order of the Board or in defending a client against an accusation by the County that the client had violated a cease and desist order of the Board.