Howard v. State Com'n on Ethics, 81-1747
| Decision Date | 26 October 1982 |
| Docket Number | No. 81-1747,81-1747 |
| Citation | 421 So.2d 37 |
| Parties | Frank A. HOWARD, Jr., Appellant, v. STATE of Florida COMMISSION ON ETHICS, Appellee. |
| Court | Florida District Court of Appeals |
Frank A. Howard, in pro. per.
Philip C. Claypool, Staff Atty., Com'n on Ethics, Tallahassee, for appellee.
Before SCHWARTZ, NESBITT and JORGENSON, JJ.
Pursuant to Section 112.322(3)(a), Florida Statutes (1979), attorney Howard instituted a request for an advisory opinion from the Florida Commission on Ethics concerning the potential for conflict between certain employment in which he was engaged. Upon receiving an adverse opinion from the Commission, Howard commenced the present appeal.
On our own initiative, we have inquired into our jurisdiction to entertain and decide an appeal from an advisory opinion and decide that we do, in fact, have jurisdiction. While it is true that Howard merely sought an advisory opinion, upon its issuance by the Commission, that opinion became binding on the conduct of Howard. See § 112.322(3)(b), Fla.Stat. (1979). 1 As such, it constituted final agency action appealable under Section 112.3241, Florida Statutes (1979) 2 which, in part, provides:
Any final action by the commission taken pursuant to this part shall be subject to review in a District Court of Appeal upon the petition of the party against whom an adverse opinion, finding, or recommendation is made.
A similar question was presented in Zerweck v. State Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA 1982). In that case, a complaint was filed alleging that Mr. Zerweck violated Section 112.313(7)(a), Florida Statutes (1979). After a hearing, the Commission determined that Zerweck was indeed violating the statute, but decided not to issue a determination of violation or imposition of a penalty. The state argued that Mr. Zerweck was precluded from judicial review because of the Commission's failure to make a formal determination. Rejecting that argument, the court held:
It is incontrovertible that the final report of the Commission concluded that Mr. Zerweck's "employment with DJM Properties, Inc., posed a frequently recurring conflict with public duties." This is an explicit finding that Mr. Zerweck violated the statute and, thus, his entitlement to judicial review is clear. It is of no consequence that the Commission, in the exercise of its discretion, declined to "formalize" its finding or to impose further penalties. Branding a public official as a law-violator is a penalty in itself. More importantly, the right to judicial review is not dependent on the imposition of a penalty. Rather, it turns upon the existence of an adverse opinion, finding, or recommendation. Once articulated, the Commission cannot shield its finding from judicial scrutiny by failing to "formalize" it.
409 So.2d at 60. Thus, it is clear that an advisory opinion, made binding on the party, is subject to appellate review by this court. 3 Furthermore, had Howard not appealed the advisory opinion, that determination would have become res judicata of the issues presented therein. See DeBusk v. Smith, 390 So.2d 327 (Fla.1980). Consequently, we have jurisdiction.
Having determined that this court properly has jurisdiction over this matter, we may now proceed to the merits. Howard is an attorney, licensed and authorized to practice law in Florida. He does not dispute the fact that he occupies the dual status of being an employee of the Dade County School Board serving as school board attorney, as well as being a partner in a law firm which has also contracted to provide legal services to the school board. Both contracts are renewable on an annual basis, and both salaries are fixed so that they will not increase regardless of the time, nature, or extent of the services rendered by either. The advisory opinion issued by the Commission on Ethics 4 stated that this dual employment presented a conflict of interest which was prohibited under Section 112.313(3), Florida Statutes (1979).
Howard first argues that Section 112.313(3), supra, interferes with the plenary jurisdiction of the Supreme Court to regulate the practice of law under Article V, Section 15 of the Florida Constitution. We find nothing in the legislative policy evinced by Sections 112.311 and 112.316, Florida Statutes (1979), construed in pari materia with Section 112.313(3), which interferes with the constitutional authority of the Supreme Court to regulate the practice of law. The statutes enacted by the legislature merely supplement the Canons of Professional Responsibility adopted by the Supreme Court. When an attorney decides to accept public employment, he does so subject to the legislative proscription on his conduct.
Howard has presented a plausible argument that the Commission placed a highly technical and unrealistic construction upon the statute. By its plain terms, the statute prohibited Howard from serving as a public employee at the same time that he is a partner in a law firm which is providing legal services to the school board. This prohibition was imposed without any hint of wrongdoing or impropriety on Howard's part. While we enforce the obvious power conferred upon the Ethics Commission, 5 we do so reluctantly where, in its broad application, the statute prohibits dual positions without any allegation of impropriety.
Affirmed.
I agree that we have jurisdiction to entertain this appeal. I also agree that Section 112.313(3), Florida Statutes (1979), does not interfere with our Supreme Court's plenary jurisdiction to regulate the practice of law.
I dissent, however, from the Court's affirmance of the Commission's advisory opinion.
The retainer agreement with Mr. Howard and his law firm openly arrived at and in use for a number of years does not, in my view, violate Section 112.313(3), Florida Statutes (1979). The contract which employs Mr. Howard, individually, and his firm is nothing more than a retainer agreement securing certain legal services. The fact that the agreement characterizes Mr. Howard as a board employee 1 ought not to operate to create an ethical dilemma in contravention of the statute where, as here, the retainer agreement contemplates, in the same document, the employment of an individual lawyer and his law firm.
A fair reading of the entire statute suggests that among the multiple interests served by the Code of Ethics is the ability of an agency to attract and keep highly qualified personnel. Indeed, Section 112.311(4), Florida Statutes (1979), 2 specifically speaks to this issue.
I would give effect to the obvious legislative intent and disapprove of the Commission's advisory opinion.
APPENDIX I
State of Florida [SEAL] Commission on Ethics
July 16, 1981
Mr. Frank A. Howard, Jr.
Dear Mr. Howard:
This is in response to your request for an advisory opinion from the Commission on Ethics on substantially the following question:
DOES A PROHIBITED CONFLICT OF INTEREST EXIST WHERE YOU, AN EMPLOYEE OF A SCHOOL BOARD SERVING AS SCHOOL BOARD ATTORNEY, ARE A PARTNER IN A LAW FIRM WHICH ALSO HAS CONTRACTED TO PROVIDE LEGAL SERVICES TO THE SCHOOL BOARD?
Your question is answered in the affirmative.
In your letter of inquiry you advise that you have entered into an annual employment agreement with the Dade County School Board under which you are paid a salary as School Board Attorney responsible for the handling of all the legal matters of the School Board. Under the agreement, you hold a regularly established position, are designated as a permanent employee in personnel records, and are paid a salary from the Board's regular salaries and wages account. Deductions from your salary are made for federal income taxes, social security contributions, and group insurance. In addition, the Board has made retirement contributions on your account to the Florida Retirement System. Under the employment contract, you are required to be on call at all times to serve the Board on a priority basis, although you are permitted to continue in the general practice of law with your law firm.
In addition, you advise that as part of the same agreement with the School Board, your law firm has contracted to provide legal services to the School Board in exchange for a fixed annual sum as compensation. The firm receives no other or additional compensation from the Board, aside from reimbursement of costs. Pursuant to the contract, the necessity for and extent of services to be performed by the law firm are to be determined by you, as the Board attorney.
Finally, you advise that it is your position that you are and have been personally an employee of...
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