There has been a lot of news lately about an opinion by Jacksonville’s Office of General Counsel, which stated that the school board must obtain the approval of the city council and the mayor before its proposed school infrastructure-tax referendum can be placed on a November ballot.
However, two major questions remain unanswered: Was the Office of General Counsel ethically permitted to issue an opinion? And was the opinion correct?
To answer the first question, probably not. The Florida Bar Rule of Professional Conduct 4-1.7 states that an attorney cannot represent a client if that representation would be averse to that of another client. Regarding the referendum, the Office of General Counsel represents three parties with adverse interests: the school board (which wants to place the referendum on the ballot in November 2019 because it believes that maintenance problems have to be addressed now), the mayor (who wants to either delay or prevent the vote because he wants to have more control over the school board’s maintenance plan) and the city council (which may very well have its own views).
In The Florida Bar Ethics Opinion 65-72, The Florida Bar dealt with a very similar matter. In that case, an attorney who held two public positions—one as an attorney for the county school board and the other as an assistant state attorney—requested an ethics opinion. The school board wanted to issue revenue certificates and thus it had to serve a petition for validation on the state attorney, who then had to investigate and present a defense if he believed that the petition was defective, insufficient, untrue or not authorized. The conclusion: “The [Florida Bar] Committee recommends that the lawyer not participate in the validation proceeding in either of his public capacities […] [T]he Committee believes [that] the risk of public misunderstanding is not desirable from either the standpoint of the legal profession or that of the pertinent public boards or offices.”
The American Bar Association has also considered this matter in two ethics opinions. In Informal Op. 1232, it found that when the relationship between a governing body and one of its agencies has become antagonistic, each side should hire independent counsel even if there is no statutory authorization for hiring independent counsel. Then, in Informal Op. 1433, it found that even when a city’s charter states that the city attorney is the legal representative of the city and all of its departments and officials, that attorney still has to withdraw in the event of a conflict.
The New York Bar has also issued two similar rulings, and courts in Connecticut, New York, Rhode Island, Washington, Arizona, Michigan and Delaware have reached the same conclusion.
The General Counsel’s opinion is also probably wrong, in my opinion, for two reasons. First, the opinion states that while the Attorney General in AGO 98-29 limited the county’s power solely to selecting the election date, he provided no explanation as to why the Commissioner’s powers had been so limited. That statement is incorrect. In analyzing the statute, the Attorney General found that the statute stated that the school board’s referendum “shall be placed on the ballot […].” The Attorney General then stated the following in footnote 7: “See Florida Tallow Corporation v. Bryan, 237 So.2d 308 (Fla. 4th DCA 1970) (The word ‘shall’ when used in a statute has, according to normal usage, a mandatory connotation).”
This is important because it is clear that when the General Counsel’s opinion states that ‘shall’ means ‘may,’ it was ignoring the finding of Florida’s Attorney General.
Second, the General Counsel’s opinion also states that a court cannot order a legislative body to put a referendum on the ballot. The main problem with that argument is that it directly contradicts the Attorney General’s opinion and two Florida Supreme Court cases. The Attorney General Opinion in footnote 7 states the following: “Anderson v. Town of Largo, 169 So.2d 481 (Fla. 1984) (if officials do refuse to call an election, a court under its general equity powers can direct compliance with the legislative mandate); William v. Keyes, 186 So. 250 (1938).” Yet for some reason the General Counsel decided not to inform the school board or the city council that two Florida Supreme Court cases had held that a court can indeed order a legislative body to hold an election.
Based on the foregoing, it is my opinion that the Office of General Counsel cannot represent all three parties in this matter. Accordingly, it should immediately withdraw from representing any of the parties and let them hire independent counsel at the city of Jacksonville’s expense.
Bork is a Jacksonville-based attorney with more than 30 years’ experience.