City of Ocala council, consider hiring staff attorneys

The new Ocala City Council is shown seated after three new council members were sworn in, along with Mayor Kent Guinn, who was re-sworn in during the Ocala City Council meeting in Ocala, Fla. on Tuesday, Dec. 7, 2021. The Council members are, from left: Jay Musleh, James Hilty, Ire Bethea, Ocala Mayor Kent Guinn, Kristen Dreyer, Barry Mansfield and City Manager, Sandra Wilson. [Bruce Ackerman/Ocala Gazette] 2021.

The preamble to the Florida Bar Rules of Professional Conduct states:

       A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.
       As a representative of clients, a lawyer performs various functions. As an adviser, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As a negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them to the client or to others.

Understanding that a lawyer cannot effectively execute this duty to the client when they also represent parties who may have other interests, the Florida Bar set forth strict rules for conflicts of interest.

Obtaining a waiver of a conflict of interest would require the attorney to identify the specific client, explain the risk associated with the potential conflict, and obtain a written waiver of the conflict—by both clients.

However, even when an attorney can obtain that informed consent by both parties and get a signed waiver, sometimes it’s still unethical representation according to the Florida Bar rules, and according to many legal opinions exhausting the subject.

The challenges for lawyers navigating the pitfalls of representing private clients as well as government entities are substantial when it comes to the potential for real or perceived conflicts that might undermine the interests of the government client was explored in our recent report Conflicts-of-interest questions surround city attorneys.

Besides conflicts of interest that could arise when government attorneys represent private clients, the attorneys must also navigate conflicts within the government. For example, if there was an ethics violation filed against one of our county commissioners, the county’s attorney would probably not be able to represent the individual commissioner in the complaint because the interests of the county and the commissioner could possibly be conflicted. In a bid protest or complaint against a building official, it becomes often necessary for the government to hire an outside counsel to represent the interest of the department that is part of the complaint.

Imagine how hard some of these issues can be to navigate when the government attorney is usually hired by a board or council, and not county or city management? The jobs of those attorneys are at the whim of a politician who may not necessarily like the advice they are giving, or find it politically expedient or beneficial.

Since attorneys are human, and not all are necessarily altruistic, we would be remiss not to weigh the government attorney’s own financial interests at play.

Many government branches have found that it is in their best interest to hire staff attorneys where the only financial interest and ethical duty is clearly defined for the government agency. For example, in the case of our county attorneys, they represent Marion County the government entity, not any individual, and none of the attorneys are allowed to do legal work outside the scope of legal services they do for the county unless it’s pro bono work performed to execute the other duty imposed on their entire profession—furthering justice for all.

These government attorneys, who are not elected, but are hired by those elected have an enormous amount of power. They help shape policy that becomes law. They make recommendations to our elected officials on how to execute their wishes within a legal framework. They weigh in on what is required and not required to be put on a meeting agenda so that it meets the State of Florida’s sunshine rules.

Since our loyalty is always with the public’s right to know, we are concerned when we see conflict waivers in city attorney contracts that just memorialize “what’s always been done.” In that case, we want to ask for you, the reader—how has it always been done?

A good example is the resolution passed in October 2020 giving the chairman of the city council and the city attorney authority to enter into agreements with developers outside the city limits for water and sewer hookup without needing approval by the larger city council. It was passed on the consent agenda, without explanation. Since we are not attorneys, we have no opinion on the legality of that measure, but we do think it flies in the face of transparency. Why wouldn’t we want to make approval of these developer agreements a council decision?

You would be hard-pressed to identify a law firm in Ocala better connected, or more powerful, than the private firm who has represented the city for more than 30 years, Gilligan, Gooding, Batsel, Anderson & Phelan, P.A. If any of you have listened to either Patrick Gilligan or Jimmy Gooding argue their point, it’s easy to be impressed. They are smart fellows.

Gooding acknowledged recently to a Gazette reporter that development was at an all-time high. When Gilligan was asked if he thought there was a shortage of real estate land use attorneys, he replied, “Not really, just [short] ones that do it well.”

The general consensus amongst those in the construction industry and the city staff that negotiate with them aligns with what Gooding and Gilligan say: there is a lot of development and not a lot of lawyers who understand how to move well in that arena.

It is exactly for these reasons that the Gazette Editorial Board recommends that the city council and city management explore hiring general counsel to represent the city without any interests other than the city’s interest, similar to how our other local government bodies have hired attorneys.

In those cases, those government attorneys can hire outside attorneys on a case-by-case basis when there are areas of law they are not personally familiar with. Said staff city attorney can then thoroughly vet and monitor any conflicts of interest for outside attorneys who would do work for the city.

By taking this route, the public will know the city attorney serves only one interest during this development boom—the City of Ocala’s.

Whether government attorneys represent the government, the officials that make it up, or the people it serves is a discussion for another time, but for now, we feel it is in the public’s best interest for the plans of developers to be challenged, so that each plan impacts our city in only the most beneficial way.