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File Ref. #057 057 - vUNl 2.3, 19f! 80-12 COMMISSION ON ETHICS ADVISORY OPINIONS CEO 80-12-February 21, 1980 CONFLICT OF INTEREST CITY COMMISSIONER EMPLOYED BY LAW FIRM REPRESENTING CUENTS IN SUITS AGAINST CITY OR REPRESEr-.'TING CUENT ARRESTED BY MUNICIPAL POUCE OFFICER To: (Name withheld at the person's request.) Prepared by: Phil Claypool QUESTIONS: 1. Would a prohibited conflict of interest be created were a ~ity colDDlissioner to be employed as an attorney by a law firm which ~nts clients in suits filed against the city? . ould a prohibited conflict of interest be created were a cIty . ioner to be employed as an attorney in the representation of defendants in criminal cases when a municipal police officer made the arrest or is a principal witness for the state? SUMMARY: The second clause of s. 112.313(7)(a), F. S., prohibits a public officer from having any employment that will create ~ continuing or freq~ently recurring conflict of interest or that would unpede the full and f81thful discharge of his public duties. This mandate would be violated wer~ a city comrnissioDer toe he employed as an a~torney by a law firm whic:h represents clients in suits filed ag8;ins~ ~e cIty. As .a named ~ef~ndant In litigation with possible personal liability, the subject C0lDDll8810ne~ has an interest in prevailing in the litigation while, in his private capacIty as an employee of the law firm representing the plaintiff, .he w~uld have an interest in seeing that the plaintiff prevailed. Even In swts where he might not be personally liable, his regard for his private interests as an employee of the law firm representing a plaintiff against the city is completely incompatible with proper regard for his public duties as a commissioner. However, s. 112.313(7)(a), F. S., would not prohibit the subject commissioner from being employed as an attorney in the representation of defendants in criminal cases, even though a suit may be filed against the city arising out of a municipal police officer's having made the arrest or being a principal witness for the state. Here, the city has no direct stake in the outcome of the criminal matter, and the commissioner would not be employed by a firm which would represent a client in any suit against the city. Question 1 is answered in the affirmative. In your letter of inquiry and in a t,:lephone c~nyersation with our staff, you advise that ....., a member of the I?elle G~ade City ComnusslOn, has been offered a position with a lelSal semces corporat!~n which recently has filed a suit against the city in behalf of a client. You further adVIse that the organization has filed about 30 law suits against the cI?9~;erf ~el pa2t 10 to 11 years, most of which haye been civil rights cases filed under Ps. 011 lilt eb14 f' U.Sd.C. Under thIS type of proceeding, a city commissioner may be held ersona'y' a e or amages. Wi~~ ~~~~lj~~' c:~~~~~ t~s~~~n:~~i ~~lic~ c~:::Ft~:i~f:m~~~~ere;o::n ~f ~ove.rnment. foOl~~ ~~~~~%; {h~ ~~=~~~;; ~~cJi~~~~~he~, rou ar~ r~;un~d ~y t~~~~t~~~s;foa~ extent that they are not defended by an in8~ e ense o. a SUItS agamst the city to the Th, Cod, of Ethics for Public 0tIi Q f'" camer, re~ ~ ~fl~J; ~r~~I~ ;hL~t ~~ COMM (7) CONFLICI'I!\ RELATIONSHIP.- (a) No public off employment or contr which is subject to t which he is an office agency have ~r ~ol< create a continUIng interests and the per: and faithful discharg. The first portion of this business entity which is Sll with his agency. Under tht legal services corporation _ it is doing busmess WIth t: The second portion. of th any employment that will or that would impede the ~ employment proposed by 1 long as the legal services ( city. In CEO 78-33, we fOUI commission member fron proceedings,. on t~e i;I'ounc in representing disnussed c duties as a member of the as a named defendant in prevailing in the li!ig~tic representing the plamtiff, . Even in suits against the ( liable, he still would have as a member of the city k city's affairs. In other wo interests as an employee completely incompatible ~ Accordingly, we find tha commissioner to be emplo suits filed against the city, Question 2 is answered In your letter of inquiry the subject city commissio who does misdemeanor accused of violating muml may be involved as a w possibility that in some 0, action for malicious prosel Section 112.313(7)(a), F. relevant to this question prohibit the subject commi though a suit may be filel case. Here. the city has nc above, the subject commi8i the client in such a suit ae Accordingly, we find thai commissioner to be empl( criminal cases when a mu; for the state. 'INIONS COMMISSION ON ETHICS ADVISORY OPINIONS 80-12 our staff. you advise that offered a position with a 1st the city in behalf of a t 30 law suits against the il rights cases filed under ommissioner may be held 1ger form of government, :lager administering that ~d by the city commission ts against the city to the ~s in relevant part: (7) CONFLICI'ING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.- (a) 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 conftict 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), F. S.] The first portion of this section prohibits a public officer from being employed by a business entity which is subject to the regulation of his agency or which is doing business with his agency. Under the circumstances you have described, it does not appear that the legal services corporation is subject to the regulation of the city; nor does it appear that it is doing business with the city. The second portion of the above-quoted provision prohibits a public officer from having any employment that will create a continuing or frequently recurring conflict of interest or that would impede the full and faithful discharge of his public duties. In our view, the employment proposed by the subject city commissioner would violate this prohibition so long as the legal services corporation was representing a client in a suit filed against the city. In CEO 78-33, we found that this provision would not prohibit a planning and zoning commission member from representing city employees as an attorney in grievance proceedings, on the ground that the commission member's regard for his private interests 10 representing dismissed city employees would not tend to lead to disregard of his public duties as a member of the comnussion. Here, however, the subject commission member, as a named defendant in litigation with possible personal liability, has an interpst in prevailing in the litigation; in his private capacity as an employee of the law firm representing the plaintiff. he would have an interest in seeing that the plaintiff prevailed. Even in suits against the city in which the commission member might not be personally liable, he still would have a strong interest in seeing that the city prevailed in litigation, as a member of the city body which has ultimate responsibility for the conduct of the city's affairs. In other words, the subject commission member's regard for his private interests as an employee of the law firm representing a plaintiff against the city is completely incompatible with proper regard for his public duties as a commissioner. Accordingly, we find that a prohibited conftict of interest would be created were a city commissioner to be employed as an attorney by a law firm which represents clients in s~filed a~t the~. L..1t.~~~~"tt:.~ :S~:~ ~~,~e~~;~!e conversation with our staff, you advise that the subject city commissioner also has been offered employment with a private attorney who does misdemeanor criminal work, including the representation of defendants accused of violating municipal ordinances. In such cases, you advise, a city police officer may be involved as a witness or as the arresting officer. As a result, there is the possibility that in some of these cases the city might be sued as a defendant in a civil action for malicious prosecution or for false arrest. Section 112.313(7)(a), F. S., quoted above in our response to your first question, also is relevant to this question. However, it is our opinion that this provision would not prohibit the subject commissioner from representing defendants in criminal matters even though a suit may be filed against the city arising out of facts related to the criminal case. Here, the city has no direct stake in the outcome of the criminal matter. As noted above, the subject commissioner could not be employed by a firm which would represent the client in such a suit against the city. Accordingly, we find that no prohibited conftict of interest would be created were a city \ commissioner to be employed as an attorney in the representation of defendantsjin . criminal cases when a municipal police officer made the arrest or is a principal witness for the state. REPRESENTING :ESENTING ;; OFFICER reated were a city a law firm which reated were a city e representation of ce officer made the .I public officer from uing or frequently he full and faithful be violated were a l a law firm which lamed defendant in t commissioner has private capacity as " he would have an in suits where he vate interests as an against the city is public duties as a Jhibit tJM subject the l'epre&entation 18Y be filed against ~ng made the arrest city has no direct ()mmissioner would I client in any suit 23