CEO 02-13 -- June 11, 2002
CONFLICT OF INTEREST
CITY OFFICIALS USING CITY BUSINESS CARDS IN PRIVATE AFFAIRS
To: Name withheld at person's request
Although no definitive answer can be provided via an advisory opinion, a city official's use of a city business card to promote the official's personal profit, gain, or business would create a prohibited conflict of interest under Section 112.313(6), Florida Statutes. However, if the card is used for a public purpose and the official incidentally receives a private or business benefit, a prohibited conflict likely is not created. CEO's 75-45, 77-175, 91-38, and 99-8 are referenced.
Would a prohibited conflict of interest be created were a City Commissioner or Mayor to distribute (by mail, in person, or otherwise) a City business card with the intent of promoting himself or herself for personal profit or gain?
Your question is answered in the affirmative, subject to the qualifications noted below.
By your letter of inquiry we are advised that as City Attorney for the City of Winter Springs you are making inquiry in behalf of the City's Mayor and Commissioners regarding various uses of their City business cards. Further, we are advised that at nominal expense the City provides each Commissioner and the Mayor with City business cards; that the cards are ordinary, simple, and similar to typical business cards carried by millions of people; that the cards contain general information regarding the City, including a copy of the City seal and the City's name, address, and telephone/fax numbers; and that the cards are "personalized" for each Commissioner and the Mayor by including their respective names, City titles, and e-mail addresses. Also, we are advised that the Commissioners and the Mayor regularly carry the cards on their persons and distribute the cards in many situations, to identify themselves and to provide contact information. Further, you write that the City cards, as is true in every setting where business cards are used, serve to identify the name and status of the person presenting the card; that the card has the desired effect of being a convenient means of introduction and elimination of confusion in identifying and communicating with individuals; that, for the most part, the use of business cards is a matter of personal taste and local custom, but that one could reasonably argue there is an "implied notion" in our society that a business card is part of an individual's persona and thus there is an expectation that business cards will be used in a variety of personal and business situations; and that there is an expectation that elected officials will use their public status business cards as an efficient and cost-effective means of introducing themselves to constituents, community leaders, developers, and others in a variety of situations in order to promote the community that elected them. Additionally, you write that the Commissioners and the Mayor predominantly use City business cards for identification purposes while performing official duties and attending government-related functions, but that on occasion they would like to use the cards as a means of introducing and identifying themselves when engaged in other affairs, including personal affairs. For example, you write further, in the course of conducting private business affairs a Commissioner and/or the Mayor also may identify an opportunity to promote the City, and during the course of this "dual private/public situation" a City business card may be presented, in person or in correspondence, to an individual for identification and information purposes and as a gesture of goodwill.
The Code of Ethics for Public Officers and Employees provides in relevant part:
MISUSE OF PUBLIC POSITION.--No public officer, employee of an agency, or local government attorney shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes.]
'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties. [Section 112.312(9), Florida Statutes.]
Section 112.313(6) prohibits public officials from corruptly using or attempting to use their official positions or property or resources placed within their trust due to their status as public officials, and it prohibits them from corruptly performing their official duties, in order to secure a special privilege, benefit, or exemption for themselves or another.
While we have not rendered an advisory opinion directly on point concerning the use of governmental business cards you describe, we have made several findings or dispositions relevant to your inquiry. In CEO 75-45, we opined that the Code of Ethics contained no provision which would prohibit a State Representative from enclosing a business card (printed at his own expense and containing a picture of himself, his name, reference to his public office and political party, district designation, telephone number, and consumer assistance telephone numbers) in correspondence to his constituents. In CEO 77-175, we opined that Section 112.313(6) would not be violated were a State Senator to send copies of a brochure (titled "The Florida Senate" and stamped inside the back cover with the message "Compliments of Senator . . . , District . . . , . . . , Florida") to persons or groups requesting copies, reasoning that "the stamped message would serve a function similar to that of a cover letter or a business card," citing favorably to CEO 75-45, but stating that we perceived a possible violation of Section 112.313(6) would exist were copies of the brochure to be sent unsolicited as, for example, part of an election campaign effort. In Commission Complaint No. 90-249, In re John Reed Buckley, we dismissed as legally insufficient (via our Public Report And Order Dismissing Complaint rendered July 24, 1991) an allegation that a member of an airport authority used his official business cards (paid for with public funds) to promote the candidacy of persons seeking seats on the authority by writing the names of preferred candidates on the cards and handing the cards out at gatherings. In CEO 91-38, we opined that a prohibited conflict under Section 112.313(6) is not automatically created by a city council member's use of stationery similar to the city's official stationery for campaign, fund-raising, and personal purposes when the stationery was not paid for with city funds, citing favorably to the Lieberman and Curlew complaint matters, supra, but leaving open the possibility that a corrupt use could occur in a specific situation. More particularly, in CEO 91-38, we stated:
We are of the opinion that whether a corrupt misuse of official position has occurred in a given situation depends on how and for what purpose the stationery will be used, rather than upon the fact of its use. In terms of whether the Council member's letter would be a corrupt misuse of position, we see no difference between her using the proposed stationery and her using plain stationery for a letter in which she refers to herself as a Council member. Either way, the recipient of the letter is informed of the Council member's public position. This may be appropriate, as in the political contexts noted above, or it may be inappropriate, for example, if the letter were being sent to settle a strictly private dispute with a debtor or creditor.
In Commission Complaint Nos. 88-112 and 89-09 (Consolidated), In re James K. Gordon, we entered a Final Order And Public Report Upon Mandate Of The District Court Of Appeal, finding as we had in our initial consideration of the matter that a city commissioner violated Section 112.313(6) by using city stationery and envelopes on behalf of a private university for which he was doing consulting work (promoting a symposium). In Commission Complaint No. 96-241, In re Robert D. Moore, we found that a county tax collector violated the statute by using letterhead stationery of the tax collector's office to endorse a candidate for the office of tax collector and by using the State seal on a private document (via reproduction on a paid political advertisement letter to voters signed by the respondent identifying himself as tax collector). Thereafter, in 1998, we found that there was no probable cause to believe a city commissioner violated Section 112.313(6) by using resources of his office for his own benefit in the mailing of 467 letters to elected officials around the State for the alleged purpose of soliciting business for his law firm, apparently relying on our Advocate's recommendation that corrupt intent could not be proven in the matter because, in view of the commissioner's departure from office via his not seeking reelection, it could have been argued that the letters created a public benefit via informing the recipients (who were various members of the Florida League of Cities, some of whom had known the commissioner through his public office) of his departure. See our Public Report and the Advocate's Recommendation in Commission Complaint No. 98-31, In re Ron Weaver. Most recently, in CEO 99-8, we opined that a circuit court clerk's providing a letter of recommendation for an appointment, job, or grant for a person who has nothing to do with the business of the clerk's office, using stationery purchased with her own personal funds that identifies the writer as the clerk or using official stationery and public resources, would not violate any provision of the Code of Ethics, provided there was no quid pro quo of value to the clerk in exchange for the recommendation (such as a campaign contribution), provided there was no benefit to the clerk other than the incidental political benefit of gaining the goodwill of the constituent, and provided (as to official stationery) there existed no rule, regulation, or policy prohibiting use of the resources of the public office for such purposes.
In view of these advisory opinions and complaints bearing on the use of official business cards, official stationery, private stationery (plain and "official/look alike"), use of public resources, and use of public position, we are persuaded that regarding your inquiry the controlling factor is (and should be) not whether the official business cards are publicly purchased or whether they contain information that identifies the named person as a public official, but, rather, whether they are used in a manner or in a context supportive of the wrongfulness or corruption required by the statute. Regarding use of public resources or position under Section 112.313(6), the District Court of Appeal has recognized that the statute is not violated in situations where there is a valid public purpose for the use, notwithstanding that the use provides an incidental private benefit to the official. See Blackburn v. State Commission on Ethics, 589 So. 2d 431 (Fla. 1st DCA 1991).
Therefore, under Blackburn, we find that use of the cards by the Mayor or a Commissioner for private purposes (such as promoting themselves for personal profit or gain) would create a prohibited conflict, inasmuch as there would be no primary, valid public purpose for the use. However, we note that incidental private benefit flowing to the Mayor or a Commissioner from use of the cards to identify himself or herself while performing official duties or attending City-related functions (as mentioned in your correspondence) likely would not be violative of the statute. As the Blackburn Court stated:
We find nothing in the language of these sections that suggests the incidental benefit appellant may have received or enjoyed in respect to her campaign for reelection by having a county employee draft the subject article was intended to be covered by this code of ethics. Both the hearing officer and the Ethics Commission agreed that it would have been appropriate for appellant to have obtained the information and written article in this case to use in her official capacity as County Commissioner apart from being used in the reelection campaign. Appellant insisted that the employee's work product was intended to be used and was in fact used for dual purposes: to inform the public as a county commissioner of an issue of vital importance to the county citizens, and to assist appellant in her reelection campaign. The first purpose is obviously a valid one, and the pertinent statutory language provides no basis for converting that valid purpose into an illegal or unethical act simply because the information was also to be used in a political campaign. There is no evidence in the record, apart for appellant's having freely admitted use of the article in her campaign, that disputes or contradicts her testimony regarding her intent to use the material for both purposes. The record does not contain competent substantial evidence to support a finding of fact that appellant's only purpose in obtaining the article was to corruptly use her office to obtain a prohibited benefit for use in her campaign.
Blackburn, at 435 and 436. [Emphasis original.]
Further, this opinion, as is the case with most if not all of our advisory opinions construing Section 112.313(6), is not conclusive as to the questions presented, due to the factual or evidential nuances or issues not susceptible to presentment or determination in the context of an advisory opinion; therefore, all should be mindful that this opinion is not controlling in the context of ethics complaints, if any, which might be brought regarding actual use of official business cards.
Accordingly, subject to the conditions, caveats, and/or evidential/factual cautions identified above, we find that use of City business cards by the Commissioners and the Mayor for private promotion or gain would create a prohibited conflict of interest under Section 112.313(6), Florida Statutes, but that a valid public use of the cards (which merely provides an incidental private benefit to the official) likely would not.
ORDERED by the State of Florida Commission on Ethics meeting in public session on June 6, 2002 and RENDERED this 11th day of June, 2002.
Ronald S. Spencer, Jr.
You structured the inquiry as four numbered questions. We view the inquiry substantively as one question. Thus, we have consolidated and restated the inquiry as one question.
As with most, if not all, of our advisory opinions regarding Section 112.313(6), Florida Statutes, the instant opinion is not conclusive, inasmuch as questions of intent and evidential nuances regarding the statute cannot be definitively addressed absent a particular factual record.
We are advised that Paul P. Partyka serves as Mayor and that Robert S. Miller, Michael S. Blake, Edward Martinez, Jr., Cindy Gennell, and David W. McLeod serve as members of the City Commission.
No public officer or employee of an agency shall corruptly use, or attempt to use, his official position, or perform his official duties, to secure special privileges, benefits, or exemptions for himself or others.
See also Chapter 74-177, Laws of Florida.
Presumably generated using public (Legislative) funds.
Our dismissal of the Buckley matter was based on the complaint's not containing sufficient factual allegations to indicate corruption or wrongful intent (was based on inadequate pleading). The Buckley matter cited with apparent approval our decisions in Complaint No. 89-45, In re John Curlee (State trooper appearing in uniform in a campaign advertisement for a State Senate candidate) and Complaint No. 90-71, In re Ilene Lieberman (mayor endorsing several candidates for the town council on letterhead that appeared to be similar to that of the town's but was not paid for with public funds), in which we determined that Section 112.313(6) was not violated.
See Gordon v. State Com'n on Ethics, 609 So. 2d 125 (Fla. 4th DCA 1992).
CEO 99-8 cites two Commission complaint matters which are factually similar to and which support the conclusion and reasoning of CEO 99-8, via findings of no probable cause. The matters are In re George Keller, Commission Complaint No. 97-169, and In re Thomas R. Mariani, Commission Complaint No. 96-238.
Provided that use of the cards is not (expressly or impliedly) coupled with any intimidation, threat, coercion, quid-pro-quo solicitation, or similar communication relevant to the official's public position as discussed in CEO 91-38, and provided that use of the cards is not in contravention of any applicable rule, regulation, policy, or other standard prohibiting such use (see CEO 99-8). However, if the City's or the State's seal is on the cards (as is represented to be the situation regarding the City's seal), Sections 165.043 and 15.03, Florida Statutes, respectively, may constitute such a rule, regulation, policy, or standard. The statutes provide:
The governing body of a county or municipality may, by ordinance, designate an official county or municipal seal. The manufacture, use, display, or other employment of any facsimile or reproduction of the county or municipal seal, except by county or municipal officials or employees in the performance of their official duties, without the express approval of the governing body is a second degree misdemeanor, punishable as provided in s.775.082 or s.775.083. [Section 165.043, Florida Statutes.]
(1) The great seal of the state shall be the size of the American silver dollar, having in the center thereof a view of the sun's rays over a highland in the distance, a sabal palmetto palm tree, a steamboat on water, and an Indian female scattering flowers in the foreground, encircled by the words 'Great Seal of the State of Florida: In God We Trust.'
(2)(a) The Department of State shall be the custodian of the great seal of the state.
(b) The great seal of this state shall also be the seal of the Department of State . . . .
(3) . . . . Any facsimile or reproduction of the great seal shall be manufactured, used, displayed, or otherwise employed by anyone only upon the approval of the Department of State. The Department of State may grant a certificate of approval upon application to it by any person showing good cause for the use of the seal for a proper purpose. The Department of State may adopt reasonable rules for the manufacture or use of the great seal or any facsimile or reproduction thereof. Any person violating the provisions of this subsection is guilty of a misdemeanor of the second degree, punishable as provided in s.775.082 or s.775.083. [Section 15.03, Florida Statutes.]
After transmittal of our staff's draft of this opinion, you submitted three additional questions (unnumbered and written by one of the officials who is the subject of this opinion) which essentially inquire as to whether the statute would prohibit a City official's providing (either by hand or through private mail) City business cards in conjunction with the official's private business endeavors or not in conjunction with City purposes. Consistent with our answer to your initial inquiry, we find that an official's provision of City business cards as described in the most recent questions would create a prohibited conflict under Section 112.313(6). The additional questions follow verbatim:
If during or after a business discussion a request is made by a person from the elected official for a city business card for informational/assistance purposes, is there a conflict using the elected official's personal business mail?
If the person asks to have a city business card sent with the personal business card and other business material using the elected official's personal business mail, is there a conflict?
If there is no cold call, but is sent out so that the receiving person, who is known by the elected official and the receiving person knows the elected official, can have the information on the card for the receiving person's file and using the elected official's personal business mail, is that a conflict?