CEO 94-28 -- June 2, 1994

CONFLICT OF INTEREST

CITY COUNCIL MEMBER APPLYING FOR ASSISTANT CITY ATTORNEY

POSITION WITH CITY WITH WHICH CITY COUNCIL HAS

SEVERAL INTERGOVERNMENTAL AGREEMENTS

To: Barry Jay Warsch, Member, City Council, City of Cooper City

SUMMARY:

No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were a city council member to be employed as an assistant city attorney of a non-contiguous city, where there exist intergovernmental agreements and dealings between the cities. Intergovernmental agreements do not constitute "doing business" for purposes of the first part of Section 112.313(7)(a). In addition, neither city regulates the other. Because only one matter has come before the city council relating to the employing city during the past year and one-half, and because the council member will abstain from voting on such matters and, as an assistant city attorney, will refrain from handling matters related to the other city, no continuing or frequently recurring conflict of interest or impediment to the full and faithful discharge of his duties as a council member will be created.

Although, as permitted by Section 286.012, Florida Statutes, the city council member will abstain from voting on matters relating to the intergovernmental agreements and dealings between the two cities, he would not be prohibited by Section 112.3143(3), Florida Statutes, from voting, because the principal by whom he would be retained is a governmental agency.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit you, a city council member, from being employed as an assistant city attorney of a non-contiguous city, where there exist intergovernmental agreements and dealings between the cities?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry, you advise that you are a lawyer and a member of the City Council of the City of Cooper City. You advise that you have submitted an application for employment to the Office of the City Attorney for the City of Hollywood for the position of staff attorney/senior assistant city attorney. However, if the position were to be offered to you, you are concerned about whether a conflict of interest under the Code of Ethics for Public Officers and Employees would be created were you to accept it, in light of several intergovernmental agreements and dealings between the two non-contiguous cities and other local government entities, primarily in the areas of wastewater treatment/disposal and local option sales tax distribution. You advise that if the position were to be offered to you, you would not work on matters relating to Cooper City.

You further advise that the Hollywood City Charter does not designate the senior assistant city attorney as an "officer" of the City. In an informal opinion, the Attorney General's Office also has opined that assistant city attorneys are not subject to the dual office-holding prohibition of Article II, Section 5(a), Florida Constitution, so as to prohibit them from holding a State or local office.

Finally, you advise that in order to avoid the possibility of running afoul of the Florida Bar's Rules of Professional Conduct, you plan to abstain from voting as a member of the City Council on matters relating to Hollywood. In a telephone conversation with staff, you also advised that in the past year and one-half, only one matter pertaining to Hollywood has come before the City Council. This matter had to do with pumping effluent through Hollywood's pipeline.

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), Florida Statutes.]

VOTING CONFLICT.--No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143(3)(a), Florida Statutes.]

Section 112.313(7)(a), Florida Statutes, prohibits a public officer from having or holding any employment or contractual relationship with any business entity or agency which is doing business with or which is subject to the regulation of the officer's agency. As a member of the City Council, you are a "public officer" pursuant to the definition of that term contained in Section 112.312(2), Florida Statutes (see CEO 93-33, CEO 92-51, and CEO 92-39) and are prohibited from holding employment with the Hollywood City Attorney's Office if that City, the "agency" of the City Attorney, is subject to the regulation of or doing business with the Cooper City Council.

In CEO 93-33, we observed that the Code of Ethics is intended to prevent private gain at public expense rather than to prevent dealings between governmental entities. See also CEO 92-39. In keeping with this reasoning, we generally have found that intergovernmental agreements and dealings between governmental entities do not constitute "doing business" for purposes of the first part of Section 112.313(7)(a). See CEO 93-33 and the opinions referenced therein. Therefore, we find that any intergovernmental agreements between Hollywood and Cooper City do not constitute "doing business" between the two cities. We also have no indication that either city regulates the other. Therefore, because neither city is doing business with the other or is regulated by the other, the first part of Section 112.313(7)(a) is not applicable under these circumstances.

Section 112.313(7)(a) also prohibits a public officer from having an 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 impede the full and faithful discharge of his public duties. You have indicated that only one matter has come before the Cooper City Council relating to Hollywood during the past year and one-half. Also, in order to avoid the appearance of impropriety, you will abstain from voting on any other such matter that comes before the City Council were you to be offered the position and you will refrain from working as an assistant city attorney on matters relating to Cooper City. Therefore, we are of the opinion that your employment as an assistant city attorney will not create a continuing or frequently recurring conflict with your duties as a member of the City Council; nor will it impede the full and faithful discharge of your public duties.

Finally, Section 112.3143(3), Florida Statutes, prohibits you, as a member of the City Council, from voting on measures which inure to your private gain or to the special gain of a principal by which you are retained, unless your principal is an "agency" as defined in Section 112.312(2), Florida Statutes. Section 112.312(2) defines "agency" to mean

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.

As an assistant city attorney, your principal would be the City of Hollywood, which is an "agency" according to the above definition. Therefore, because we have no indication that your voting as a member of the City Council on any matter concerning Hollywood or the intergovernmental agreements between the two cities would inure to your special private gain, we are of the opinion that you would not be prohibited by Section 112.3143(3)(a) from voting on such matters.

Accordingly, we find that no prohibited conflict of interest or voting conflict of interest under the Code of Ethics would be created were you to be employed by the City of Hollywood as an assistant city attorney, refraining from working on matters relating to Cooper City, and also to serve as a member of the City Council of Cooper City, in which capacity matters relating to the City of Hollywood and the intergovernmental agreements between the two cities occasionally would arise, on which you would voluntarily abstain from voting.

We caution that this opinion does not address any possible conflicts of interest that may exist under the Florida Bar's Rules of Professional Conduct, particularly as they relate to your duty to maintain the confidentiality of information that you may be privy to in your positions as City Councilman and Assistant City Attorney, as well as your duty not to use that information against the other. For advice about the appropriate standards of conduct under the Rules of Professional Conduct, please contact the Florida Bar.