by Joe Wilhelm Jr.
Staff Writer
The question of whether or not the City’s General Counsel’s Office can ethically represent two government entities at the same time was posed to the City’s Charter Revision Commission Thursday.
Attorney Braxton Gillam, who also serves on the City’s Ethics Commission, addressed the commission to discuss his experiences and concerns with potential conflicts of interest that may arise in the General Counsel’s office.
“When you start dealing with lawyers who are serving in government, it’s not a two bucket scale, it’s a three bucket scale,” said Gillam. “You’ve got the same considerations and protections of people and democratic ideals, you’ve got the same considerations of fiscal responsibility and efficiency, but you’ve also got to consider the rules promulgated by the Supreme Court and the Florida Bar that govern lawyers in the state of Florida.”
The particular rules of professional conduct that govern lawyers in the state of Florida Gillam referred to included 4-1.7, conflicts between current clients; 4-1.10, imputation of conflicts of interest; and 4-1.11, special conflicts of interest for former and current government officers and employees.
“The concern in our form of government is we don’t have the division within our government to bring order to conflicts,” said Gillam. “What you do have, from time to time, you can look historically in Jacksonville and see where there have been outside counsel hired when conflicts came up. But you are left with making the determination with the General Counsel looking at the issue.”
The City’s General Counsel provides legal services to all entities of the consolidated government with clients including JEA, a school district, Jacksonville Airport Authority, Jacksonville Port Authority, Jacksonville Transportation Authority, the Housing Authority, five constitutional officers (Supervisor of Elections, Property Appraiser, Sheriff, Tax Collector and Clerk of Court), the Mayor and 10 executive branch departments, 19 City Council members and more than 40 boards, commissions, and agencies.
The vast client list requires a long list of practice areas of its counsel including litigation (e.g., commercial, personal injury, constitutional, etc.), real estate, land use, environmental law, labor and employment law, workers’ compensation, eminent domain, foreclosures, evictions, bankruptcy, municipal finance, contract negotiation and drafting, and a variety of economic development and transactional areas.
By serving so many different clients in so many different practice areas, conflicts are bound to arise, Gillam contended. He pointed to an Ethics Opinion from the Florida Bar regarding a zoning matter in Volusia County. Citizen’s complained that the same attorney had been assigned to advise both the Zoning Commission and the Board of Zoning Appeals.
“The complaint from the citizens was, ‘We’re not getting a fair shake,’” said Gillam. “’You’ve got the same lawyers telling us what to do at every level.”
There are also instances that two entities of the government may have a grievance against the other, which was expressed by Sheriff John Rutherford when he addressed the commission in July.
“We had an unlawful death in the jail when I was the director of corrections,” said Rutherford. “I was attempting to fire the correctional sergeant who made a bad decision which resulted in the death. Clearly, the General Counsel’s Office is going to defend the City in a wrongful death suit. I’m trying to fire a bad employee and it’s in their best interest to say this guy did everything right. There’s a conflict there.”
The commission asked its general counsel Steve Rohan to comment on potential conflicts of interest and how the General Counsel’s Office might handle the situations.
“The General Counsel is aware of all the ethics rules and the Supreme Court has said that as long as you assign one attorney to one client and another attorney in the office to another client then that’s legal, that’s appropriate, that’s how government law offices operate,” said Rohan. “There may come times where there are conflicts and in those times, if someone will request of the General Counsel that separate counsel is needed to advise the client, the general counsel will consider that and, if necessary, assign an outside attorney to represent the client.”
Former City General Counsel, Mayor and current Charter Revision Commission member Ed Austin wasn’t sure why separate counsel was necessary.
“I didn’t see the problem. You make a decision and if you have a problem, you sort it out. Satisfy the client and then go on with it,” said Austin. “If you can’t satisfy the client, when they are trying to pull away from consolidated government, you make a decision and then pay attention to it.”
But after visiting with all of the City’s constitutional officers, some of the commission felt that the issue might be something to investigate a little more.
“We have had on the record, to date, the School Board, Sheriff, Ethics Commission and Supervisor of Elections who all state a true concern about whether there is an actual conflict of appearance of a conflict in rendering legal opinion,” said Jeanne Miller, commission member. “That’s why most of the commission have voted that we look at this issue.”
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