CEO 97-20 -- December 5, 1997

CONFLICT OF INTEREST

FORMER SCHOOL BOARD ATTORNEY PERFORMING CONTRACT

WORK FOR BOARD WHILE ON TRANSITION LEAVE

To: (Name Withheld At Person's Request)

SUMMARY:

No prohibited conflict of interest would be created under Sections 112.313(3) or 112.313(7)(a), Florida Statutes, were a former school board attorney on retirement transition leave to provide hourly legal services to the board. The former attorney would not be a "public employee" or a "local government attorney" subject to the Code of Ethics.

QUESTION:

Would a prohibited conflict of interest be created were a former school board attorney to perform contract legal work on specific board cases while on transition leave (after leaving her position as board attorney but prior to retiring)?

Your question is answered in the negative.

By your letter of inquiry, materials accompanying the letter, and additional correspondence with our staff, we are advised that you currently are employed as the Dade County School Board Attorney but that you have elected to take a retirement package under which you would be placed on "transition leave" for one year, beginning July 1, 1998, at eighty percent of your Board Attorney salary, with your retirement beginning at the end of the one-year leave period. You advise further that the Board's decision to continue your retirement eligibility for one year is why you will be taking the leave of absence effective July 1, 1998, with your retirement becoming effective July 1999.

In addition, you advise that there are three Board lawsuits you are defending (two of which have received your substantial attention) which you hope will be tried before you go on leave. However, you advise further, if the suits are not tried prior to your taking leave they will have to be assigned to another attorney (probably outside counsel) who will have to spend a substantial amount of time relearning the cases, unless you try the cases at the same hourly rate as outside counsel ($90 per hour) during your leave period. You advise that the hourly work would be only trial work inasmuch as all discovery in the cases will be completed before you go on leave. Additionally, you advise that your hourly work would be as an independent contractor; that it is your intent that any contract between the Board and yourself for the hourly work be entered into subsequent to the time you go on leave; and that when you begin leave an attorney other than yourself will become the Board's "local government attorney" within the meaning of Section 112.313(16)(a), Florida Statutes, with your work for the Board being confined to specific litigation. Also, you advise that you will have no duty during the time of your leave to continue to advise the Board in general legal matters of any sort; that while on leave you will not be involved in a public capacity in any issues regarding retirement/leave matters which might affect you in your private capacity; and that general advice to the Board would be the responsibility of the new Board Attorney (who may be selected from in-house attorneys, the private sector, or another governmental agency), your obligations to the Board deriving solely from your status as an independent contractor handling specific litigation.

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

DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his or her official capacity as a purchasing agent, or public officer acting in his or her official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his or her own agency from any business entity of which the officer or employee or the officer's or employee's spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or the officer's or employee's spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to the officer's or employee's own agency, if he or she is a state officer or employee, or to any political subdivision of any agency thereof, if he or she is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business or when such offices are on property wholly or partially owned by the legislator. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes.]

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 or she 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 or her private interests and the performance of his or her public duties, or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]

LOCAL GOVERNMENT ATTORNEYS.--

(a) For the purposes of this section, 'local government attorney' means any individual who routinely serves as the attorney for a unit of local government. The term shall not include any person who renders legal services to a unit of local government pursuant to contract limited to a specific issue or subject, to specific litigation, or to a specific administrative proceeding. For the purposes of this section, 'unit of local government' includes, but is not limited to, municipalities, counties, and special districts.

(b) It shall not constitute a violation of subsection (3) or subsection (7) for a unit of local government to contract with a law firm, operating as either a partnership or a professional association, or in any combination thereof, or with a local government attorney who is a member of or is otherwise associated with the law firm, to provide any or all legal services to the unit of local government, so long as the local government attorney is not a full-time employee or member of the governing body of the unit of local government. However, the standards of conduct as provided in subsections (2), (4), (6), and (8) shall apply to any person who serves as a local government attorney.

(c) No local government attorney or law firm in which the local government attorney is a member, partner, or employee shall represent a private individual or entity before the unit of local government to which the local government attorney provides legal services. A local government attorney whose contract with the unit of local government does not include provisions that authorize or mandate the use of the law firm of the local government attorney to complete legal services for the unit of local government shall not recommend or otherwise refer legal work to that attorney's law firm to be completed for the unit of local government. [Section 112.313(16), Florida Statutes.]

Absent the applicability of an exemption under Section 112.313(12), Florida Statutes, or the applicability of Section 112.316, Florida Statutes, Section 112.313(3) would, as you recognize in your inquiry, prohibit your selling hourly legal services to the School Board if you are an "employee" of the Board at the time of the sale. Further, as you also recognize, Section 112.313(7)(a) would apply vis-a-vis the hourly work, absent the applicability of an exemption and absent the applicability of Section 112.316, if you are deemed to be a Board "employee."

In Wright v. State Commission on Ethics, 389 So. 2d 662 (Fla. First DCA 1980), the court reversed our finding that a tenured public school teacher on a leave of absence without pay was an "employee" of the school district. In determining that the teacher was not an employee, the Wright court utilized the following definition of employee, which was used by the Florida Supreme Court in City of Boca Raton v. Mattef, 91 So. 2d 644 (Fla. 1956):

An employee is one who for a consideration agrees to work subject to the orders and direction of another, usually for regular wages but not necessarily so, and, further, agrees to subject himself at all times during the period of service to the lawful orders and directions of the other in respect to the work to be done.

From its use of this definition of employee, it is clear that the Wright court recognized the distinction between an employee and one who is not an employee for purposes of the Code of Ethics by adhering to reasoning used to distinguish an independent contractor from an employee, as we have subsequently done in a number of matters. See, for example, In re AUDIE EUGENE LANGSTON, Commission on Ethics Complaint No. 92-179 (licensed real estate broker and developer retained by the Carrabelle Port and Airport Authority as its "Exclusive Agent," dismissed due to lack of jurisdiction over independent contractor), and In re GREGORY V. BEAUCHAMP, Commission on Ethics Complaint Nos. 93-71, 93-85, & 93-88 (Levy County Attorney, dismissed due to lack of jurisdiction over independent contractor). Clearly, you represent that you will be performing hourly work as an independent contractor responsible for particular cases in litigation, rather than working as a salaried employee occupying a position with the Board. Therefore, we find that you would not be a "public employee" by virtue of your hourly work.

Further, it might be argued that your situation is distinguishable from that of the teacher in Wright based upon your receipt of hourly compensation (the teacher being unpaid). However, we are persuaded that the thrust of the Wright court's reasoning lies in the teacher's lack of subjection to the orders and directions of the governmental entity in respect to work to be done (a primary indicia of "employment"), rather than in the lack of compensation. The primacy of lack of control and direction in distinguishing an employee from one who is an independent contractor or one who does not occupy an employee status was discussed by us in BEAUCHAMP, supra, when we quoted from Saudi Arabian Airlines Corporation v. Dunn, 438 So.2d 116 (Fla. 1st DCA 1983), as follows:

. . . that at common law, the four elements considered in making a determination of whether a master and servant relationship exists are (1) the selection and engagement of the servant, (2) the payment of wages, (3) the power of dismissal, and (4) the control of the servant's conduct, and further, . . . the essential element being the right of control and the right to direct the manner in which the work shall be done, the payment of wages being the least important factor. Id. at 120. [e.s.]

Further, we do not find that your transition-to-retirement leave status from July 1, 1998 to July 1, 1999 would operate to make you an employee of the Board. The money paid to you in this status presumably derives from your past service, in conjunction with your retirement package which includes the Board's administrative decision to continue your retirement eligibility for one year, rather than deriving from any work you would perform for the Board during the one-year transition period.[1]

However, if you and the Board enter into any contract for you to provide services to the Board prior to July 1, 1998, Sections 112.313(3) and 112.313(7)(a) would be violated, inasmuch as you would be acting in a private capacity to sell services to your political subdivision and inasmuch as you would hold a conflicting contractual relationship, due to your status as a public employee not expiring until July 1, 1998.

Also, we note that the "local government attorney" provision contained in Section 112.313(16) is inapplicable to your situation inasmuch as the applicability of the Code of Ethics to you prior to July 1, 1998 is based upon your status as a public employee (salaried School Board Attorney) and inasmuch as a person other than yourself will be the School Board Attorney ("local government attorney") beginning July 1, 1998.

Accordingly, we find that a prohibited conflict of interest would not be created by your performing hourly legal services for the Board after you begin retirement transition leave, provided that the contract for such services is not entered into prior to your commencing leave.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 5, 1997 and RENDERED this 9th day of December, 1997.

__________________________

Kathy Chinoy

Chair

[1] Apparently you would be entitled to the eighty percent transition period "pay" whether or not you worked on cases for the Board during that time.