CEO 96-29 -- December 3, 1996
CONFLICT OF INTEREST
STATE UNIVERSITY ADJUNCT PROFESSOR
MEMBER OF LAW FIRM REPRESENTING CLIENT IN PUBLIC
RECORDS LAWSUIT AGAINST UNIVERSITY
To: Ms. Ondina Felipe, University Attorney, Florida Atlantic University, Boca Raton
SUMMARY:
No prohibited conflict of interest would be created under Section 112.313(7)(a), Florida Statutes, were an attorney in private practice to teach a course for a State University as an adjunct professor and be a partner in a law firm that is representing a client who is an employee of the University in seeking public records from and bringing a public records lawsuit against the University. Under the circumstances, the contract would not present a continuing or frequently recurring conflict between the attorney=s private interests and her public duties as an adjunct professor.
QUESTION:
Would a prohibited conflict of interest be created were an attorney in private practice to teach a course for a State University as an adjunct professor and be a partner in a law firm that is representing a client who is an employee of the University in seeking public records from and bringing a public records lawsuit against the University?
Under the circumstances presented, your question is answered in the negative.
In your letter of inquiry, you advise that you represent Dr. James Malek, Dean of the Schmidt College of Arts and Humanities, Florida Atlantic University. You also advise that in March, 1996 Ms. Florence Snyder Rivas, an attorney, was asked by the Chair of the University=s Communications Department to teach as an adjunct professor a course on mass communication law and regulation during the 1996 fall semester.[1] The Communications Department is in the Schmidt College of Arts and Humanities at FAU. The subject attorney is a lawyer in private practice as a partner in a small law firm, with expertise in media law, and has taught the course at FAU previously. She agreed to teach the course, but the University did not issue her a contract of employment for the fall semester before the following conflict of interest question arose.
The former Dean of the Schmidt College is now Director of the Schmidt Institute for Comparative Studies, a unit within the Schmidt College of Arts and Humanities at FAU. The Director/former Dean has retained two law firms, including the law firm of the subject attorney, to represent her in disputes with the current Dean and other administrators, presumably over budget matters, you advise. In July and August of this year the subject attorney=s firm, on behalf of the Director/former Dean, requested copies of documents that had been considered confidential by the University=s Foundation and by FAU and then sought a writ of mandamus against the University in court.[2] As a result of the lawsuit, the documents were ordered to be produced by the Court, and the University has complied.
You question whether there would be a prohibited conflict of interest were the subject attorney to teach the communications course for the University under these circumstances.
The Code of Ethics for Public Officers and Employees contains the following limitation:
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.]
We previously have advised that an attorney has a contractual relationship with each client of her law firm. See, for example, CEO 80-79 and CEO 94-5. Therefore, we are concerned with the question of whether this contractual relationship and its obligations would Acreate a continuing or frequently recurring conflict@ between private interests and the performance of an adjunct professor=s public duties, or would Aimpede the full and faithful discharge@ of the public duties of an adjunct professor.[3]
Section 112.313(7)(a) Aestablishes an objective standard which requires an examination of the nature and extent of the public officer=s duties together with a review of his private employment to determine whether the two are compatible, separate and distinct or whether they coincide to create a situation which >tempts dishonor.=@ Zerweck v. State Commission on Ethics, 409 So. 2d 57 (Fla. 4th DCA 1982). Under this standard, whether a prohibited conflict of interest would be created depends on the nature and extent of one=s public duties and of one=s client=s interests, rather than on considerations of Ainstitutional loyalty@ or on a mechanistic determination of whether the client would be represented in a lawsuit against the same governmental entity by which one is employed. In previous opinions we have concluded that a public official serving at the head of an agency should not represent a client in a lawsuit against his or her agency. See CEO 88-8 and CEO 82-7, in which we advised that a mayor=s law firm should not represent a client in litigation against the city. Similarly, in CEO 89-39 we concluded that a member of a county consumer protection board should not represent clients in circuit or county court challenging orders of the board or a cease and desist order of a panel of the board. On the other hand, in CEO 92-16 we concluded that an attorney serving as a hearing officer for a county=s code and zoning enforcement board would not be prohibited from representing a client in a court appeal of an order from the county=s consumer protection board.
You advise that, as an adjunct professor, the subject attorney would have no role on behalf of the University in producing the requested records or in resolving the issues involved in the litigation. You also have advised that the records involved in the lawsuit were kept in the Foundation and the President=s Office and that it would be unlikely that an adjunct professor teaching a course in the Communications Department would have access to them. Other records that were requested were kept in the College that includes the Communications Department but were produced by the University and were not involved in the litigation.
Under these circumstances, and based on our understanding that the public duties of an adjunct professor principally involve teaching the course(s) assigned, we are of the opinion that no continuing or frequently recurring conflict or impediment to public duties would have been created by virtue of her firm=s representation of this client. In particular, we note that the litigation here has consisted primarily of legal issues--whether certain records are public records and are available for inspection and copying by the public and the amount of attorney=s fees to be awarded--and not fact intensive litigation that might involve, for example, other University employees in the Department where she would be teaching.
You have expressed concern over the possibility that being among colleagues the subject attorney may obtain information useful in her representation of the Director/former Dean that normally would not be available to other attorneys litigating against the University, stating
It is the proximity in the workplace that raises the issue of conflict, the benefit not available to other lawyers to have access to potential witnesses in the secure collegial environment without the benefit of an otherwise adversarial distance available to the employer.
In response, the subject attorney has advised that when she taught for the University as an adjunct before,
she did not attend faculty meetings, had no office at the University and enjoyed no greater access to information than a visitor to the campus. After being hired by telephone, she simply traveled to her assigned classroom, taught her students, and turned in her grades.
You also have expressed concern over the possibility of future litigation between the client and the University, arising out of the scope of engagement (contractual relationship) between the client and the firm. While we understand these concerns and are of the opinion that, under different circumstances, representing a client in litigation against one=s agency may impede the full and faithful discharge of public duties, at the present time it appears speculative to conclude that employment as an adjunct professor would enable access to information not available to the general public and beneficial to the client.
Accordingly, under the circumstances presented and subject to the concerns noted above, we find that no prohibited conflict of interest would be created were the subject attorney to teach the course for the University as an adjunct professor and be a partner in a law firm that is representing a client who is an employee of the University in seeking public records from and bringing a public records lawsuit against the University.
ORDERED by the State of Florida Commission on Ethics meeting in public session on December 3, 1996 and RENDERED this 5th day of December, 1996.
__________________________________
Mary Alice Phelan
Chair
[1] Adjuncts are hired under OPS Faculty contracts, and the University considers them to be and treats them as part-time employees rather than as independent contractors.
[2] Under the terms of the engagement between the firm and the client, the engagement involves Aformally demanding access to the documents you seek, following up to obtain access, and, if necessary, filing an action seeking access to the documents in question.@
[3] One threshold issue is whether the subject attorney would be a public employee, or an independent contractor, if she were to serve as an adjunct professor for the University. In CEO 92-36 we concluded that an adjunct teacher at a community college was a public employee governed by the Code of Ethics, rather than an independent contractor who would not be bound by any of the Code=s ethical restrictions. Based on the rationale of that opinion, on the sample contract you provided, and on the information provided in your letter, we conclude that the subject attorney would be a public employee were she to serve as an adjunct professor for the University.