CEO 88-40 -- June 9, 1988

CONFLICT OF INTEREST

CITY COUNCIL MEMBER OR PARTNERS OF HIS LAW FIRM

REPRESENTING CLIENTS BEFORE CITY COUNCIL

To: Mr. William H. Grace, Potential Candidate for City Council, City of Fort Myers

SUMMARY:

A prohibited conflict of interest would be created under Section 112.313(7), Florida Statutes, were a city council member or a partner of his law firm to represent a client before the city council regarding zoning matters or requests for variances. CEO 77-126 and CEO 78-86 are referenced.

QUESTION:

Would a prohibited conflict of interest be created were you to serve on a city council and were you or a partner in your law firm to represent a client before the city council in a zoning matter or a request for a variance?

Your question is answered in the affirmative.

In your letter of inquiry you advise that you are a practicing attorney and a partner in a law firm. You advise that you are considering running for election as a member of a city council. Your firm does not have any pending suits against the city, and you are not aware that the firm ever has litigated against the city or any of its agencies. However, you and other partners occasionally have appeared before the city council representing clients in zoning matters and requests for variances.

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 (1987).]

In a previous opinion, CEO 77-126, we advised that representing a client before a public board of which one is a member would violate this provision. Subsequently, in CEO 78-86 we advised that such a conflict of interest could not be mitigated or avoided by having another member or employee of the public officer's professional firm represent the client before his board.

We have advised that a city council member could represent clients as a consulting engineer before boards of the city other than the city council and that such representation should be disclosed as provided in Section 112.3145(4), Florida Statutes. See CEO 86-47. However, we suggest that you contact The Florida Bar for its opinion on these types of situations, as we note that Opinion 74-27 of the Professional Ethics Committee advised that a city board member could represent a client before other city agencies provided that the matter had no relationship to any decision made by the board, the board had no control over any administrative officer before whom the attorney would appear, and the board had no control over any public official who might appear in a proceeding as a witness and whose testimony the attorney might have to attack.

Accordingly, we find that a prohibited conflict of interest would be created were you or another partner of your law firm to represent a client before the city council in a zoning matter or a request for a variance, if you serve as a member of the city council.