CEO 99-9 -- May 9, 2000

 

CONFLICT OF INTEREST

 

SCHOOL BOARD MEMBER AOF COUNSEL@ TO LAW

FIRM WITH EXISTING LAWSUIT AGAINST BOARD

 

To:      Ilene L. Michelson, Esquire (Fort Lauderdale)

 

SUMMARY:

 

A continuing or frequently recurring conflict or impediment to the full and faithful discharge of public duty would not be created under the second part of Section 112.313(7)(a), Florida Statutes, were a school board member to become Aof counsel@ to a law firm handling a civil rights lawsuit against the board due to the posture of the lawsuit, the unlikeliness of future lawsuits by the firm against the board, and the member=s lack of involvement in the litigation.  CEO’s 94-41 and 96-29 are referenced; CEO 96-1 is distinguished.

 

QUESTION:

 

Would a prohibited conflict of interest be created under Section 112.313(7)(a), Florida Statutes, were a school board member to become Aof counsel@ to a law firm which has an existing civil rights lawsuit against the board?

 

Under the facts of your inquiry, your question is answered in the negative.

 

By your letter of inquiry we are advised that Stephanie Kraft (Amember@), who serves as a member of the Broward County School Board (ABoard@), recently having been elected, is considering establishing an Aof counsel@ relationship with a law firm which is handling a lawsuit against the Board, the filing of which predates her membership on the Board.  Further, you advise that the lawsuit is a civil rights action by parents of minority children claiming that the Broward County School system regularly discriminates against minority students by providing them with inferior facilities, books, classrooms, and the like, in comparison to its provision for white students.  Also, you advise that the lawsuit is on appeal after dismissal by the trial court on the issue of standing, that the firm has no plans to file any further litigation against the Board, that it is unlikely that any new litigation by the firm against the Board will arise, but that the firm intends to prosecute the lawsuit=s existing claims to conclusion.[1]

You advise that the member has no financial interest in the existing lawsuit against the Board; that she has practiced law for  over ten years in the area of insurance defense, dealing with issues of both liability and coverage; that she currently is an associate with another law firm; that she is not involved in either the prosecution or defense of civil rights claims; and that she will not partake in any Board deliberations pertaining to the lawsuit and will abstain from voting regarding any measures pertaining to the lawsuit which may come before the Board.  Additionally, you advise that if the member establishes an Aof counsel@ relationship with the firm, the senior partner of the firm would hire her on a case-by-case basis, under an hourly billing arrangement reduced from going rates in order to compensate the firm (in lieu of rent) for the office space she would utilize; that she would not share in firm profits, her only compensation coming from hours worked; that she would not be practicing law full-time due to the demands of her public office, her work consisting solely of research and writing on insurance-related issues (primarily coverage issues); and that she would be neither a partner nor associate of the firm.

Section 112.313(7)(a), Florida Statutes, 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 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.

 

This statute would prohibit the member=s becoming Aof counsel@ to the firm if that relationship would create a continuing or frequently recurring conflict between her private interests and the performance of her public duties, or would impede the full and faithful discharge of her public duties.[2]

We have had little occasion to consider situations involving the Aof counsel@ relationship and its implications under the Code of Ethics, with CEO 96-1 containing our most-detailed discussion.  In CEO 96-1, we found that a prohibited conflict of interest would be created were the law firm with which a Jacksonville Electric Authority Board member had such a relationship to appear before the Authority, representing bond underwriters in Authority bond issues or other clients.  In that opinion we reasoned that the Authority member=s close, regular, and continuing relationship with the law firm and his duty of loyalty to the clients of the firm created a prohibited conflict of interest under the second part of Section 112.313(7)(a) when the law firm appeared before the Authority in behalf of a client.  In contrast, we find that the instant situation of the member is distinguishable in that the law firm for which she will be doing hourly work does not contemplate any further lawsuits against the School Board, is in the posture of appealing a dismissal of the one existing lawsuit against the Board, and will not be representing any other clients before the Board.  Thus, the member=s situation is more akin to that found in CEO 94-41, in which we found that Section 112.313(7)(a) was not violated by a city council member=s employment as a paralegal with a law firm, notwithstanding that the firm infrequently represented clients in matters involving the city, either in litigation or before the city council or another city board, where the councilmember, as an employee of the law firm, had no involvement in the matters involving the city.[3]  Similarly, you have represented to us that the member had and will have no involvement, in behalf of the law firm, regarding the lawsuit against the Board which is on appeal.  See also CEO 96-29, in which we found that no prohibited conflict of interest would be created under Section 112.313(7)(a) were a state university adjunct professor to be a partner (not merely an attorney occupying Aof counsel@ status) in a law firm representing a client in a public records lawsuit against the university. 

Accordingly, provided the member continues to have no financial interest in the lawsuit and continues to have no responsibility for or involvement in the handling of the lawsuit, provided no other suits are brought by the law firm against the School Board, provided the firm does not represent any other clients before the Board, provided the member abstains from voting on any Board measures concerning the lawsuit, and provided the member only gets paid by the firm for actual work performed for the firm on an hourly basis, we find that the member=s situation is distinguishable from that of CEO 96-1 and find that a prohibited conflict of interest would not be created under Section 112.313(7)(a) were the member to become Aof counsel@ to the  law firm handling the existing lawsuit.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 3, 1999 and RENDERED this 8th day of June, 1999.

 

 

__________________________

Charles A. Stampelos

Chair


1The firm, you advise, has a significant insurance practice and handles some civil rights cases.

2We see no indication that the scenario you describe implicates the first part of Section 112.313(7)(a), in that it does not indicate that the member would hold employment or a contractual relationship with any business entity that is regulated by or doing business with the School Board.

3Nevertheless, as we recognized in CEO 94-41 and as you recognize in your instant inquiry, such situations implicate the voting conflicts law codified at Section 112.3143(3)(a), Florida Statutes.  Therefore, we find that the member should declare her relationship to the firm, abstain from voting, and timely file CE Form 8B (memorandum of voting conflict) regarding any measures involving the  lawsuit which may come before the Board.