The Florida Bar

July 23, 1969

An attorney employed on a regular basis by a municipality or its official boards or commissions should not represent private clients before the governing board of the city.

Canon: 6
Opinion: 59-25

Chairman MacDonald stated the opinion of the committee:

One product of the dissemination of prior opinions of the Committee in a recent publication distributed by The Florida Bar is the inquiry giving rise to this opinion. The inquirer in our Opinion 59-25 advises the Committee that he apparently never received the opinion from the then Committee, but that, more importantly, he is concerned that the facts of the opinion there set forth did not accurately relate his status. He advises as follows:

From 1957 to the present time, I have been employed by the City Council of the City of __________ , on a part time basis, to attend all meetings of the Personnel Board and disciplinary proceedings before such Board, so as to be its legal advisor. Under the Resolution employing me, my duties are confined to advising the Personnel Board (Resolution __________ , attached hereto). I do not advise, represent nor consult with the City Council. Although the City Council, as the legislative branch of the City, adopted the resolution employing me and setting up my compensation, the attorney-client relationship is solely between the Personnel Board and myself, under the terms of the Resolution of Employment.

The Personnel Board is a semi-autonomous body consisting of five lay members, serving without salary, each appointed by a 5/7 vote of the City Council for five year terms and three members elected by the employees for three year terms. The Board is charged with the responsibility of enforcing personnel procedures contemplated by the Civil Service Act (Chapter ______ , Special Acts of 19___) and the Rules adopted by the Board in conformity therewith. It also hears appeals of Civil Service employees who are suspended, reduced or removed. The decisions of the Board are not reviewable by the City Council or the City Manager, but are final unless reversed by the Circuit Court, if appropriate action is filed therein. If such a suit for review is filed, I do not represent the City therein, but such representation is handled by the City Attorney. My duties cease as soon as the matter leaves the Personnel Board.

I might also here point out that Section 6 of the Charter of the City of __________ provides:

“The City of __________ shall have the power: . . . . To adopt such ordinance as may be deemed proper to prohibit any officer, board member, or employee to engage in any activity or enter into any agreement which shall be in conflict with his duties as such officer, board member or employee, and to provide penalties, including removal from office or employment, for any violation of such ordinance or ordinances.”

The Conflict of Interest ordinance of the City provides:

“No officer, official, employee or assistant city attorney who received compensation shall appear before the city council or any board, commission, department or agency of the city in behalf of private interests in any matter which will be in conflict with his duties as such officer, official or employee.”

One member dissenting, the Committee, without endeavoring to look behind Opinion 59-25, concludes that the same result should obtain under the facts above stated, it being the belief of the Committee that any attorney who is retained on a regular basis by a municipality or any of its official boards or commissions should not represent private clients before the governing board of the city.

We recognize as stated by the inquirer that his local bar association through its ethics committee has advised him that it holds a differing view. It is not clear to us whether this opinion, or the resolution of the City Council, were procured before or after the issuance of Opinion 59-25, and we offer no commentary, therefore, on the inferences which might be drawn from the time sequence involved. We merely state in passing that our opinions are advisory only, and that it is not at all unusual or unexpected that from time to time this Committee will reach conclusions not shared by other committees or members of the Bar.

[Revised: 08-24-2011]