MISUSE OF PUBLIC POSITION
SHERIFF'S OFFICE EMPLOYEE/CANDIDATE FOR SHERIFF
WEARING UNIFORM AND EQUIPMENT WHILE CAMPAIGNING
To: Captain Kurt A. Hoffman, General Counsel (Sarasota S.O.)
A sheriff's office employee/candidate for sheriff would not misuse his public position in violation of Section 112.313(6), Florida Statutes, were he to wear his uniform and equipment, with the permission of the sheriff, while himself campaigning for election as sheriff. CEO 02-13, CEO 99-8, and CEO 91-38 are referenced.1
Would a law enforcement officer employee of a sheriff's office who also is a candidate for the office of sheriff misuse his public position in violation of Section 112.313(6), Florida Statutes, were he to wear his sheriff's office uniform and associated equipment while campaigning?
Under the circumstances presented in your inquiry, this question is answered in the negative.
By your letter of inquiry and accompanying materials, we are advised that you make inquiry in behalf of Sheriff William F. Balkwill, of Sarasota County, who desires our opinion as to whether some of his subordinates who may become candidates for, and who may be campaigning for election to, the Office of Sheriff of Sarasota County can campaign while wearing their Sheriff's Office uniforms and associated equipment without violating Section 112.313(6), Florida Statutes. In addition, we are advised that the Sheriff has announced that he does not intend to seek a third term as Sheriff, that several potential candidates are among the ranks of the Sheriff's Office (rank of captain or higher), that the potential candidates are salaried, sworn officers who are considered to be "on-call" twenty-four hours per day, seven days per week, that the potential candidates intend to wear their Sheriff's Office uniforms and equipment while at various political/campaign events while "off-duty," and that such wearing will be with the permission of the Sheriff.2
Section 112.313(6), Florida Statutes, 3 provides:
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.
Among other things, the statute prohibits a public officer or a public employee from "corruptly" using or attempting to use his public position or property or resources within his public trust, such as his uniform and official equipment, in order to personally benefit himself (e.g., in order to benefit himself as a candidate). In order for one's actions to be corrupt within the meaning of the law, his actions must be inconsistent with the proper performance of his public duty and his actions must be wrongful. Section 112.312(9), Florida Statutes; Blackburn v. State Commission on Ethics, 589 So. 2d 431 (Fla. 1st DCA 1991).
Because "corrupt" conduct is required for a violation of Section 112.313(6) and because we find such conduct to be lacking in a situation in which law enforcement officers wear uniforms and equipment in accord with the directives, policies, or orders of their superior, we find that the Sheriff's Office personnel who also are candidates will not violate the statute by wearing their uniforms and equipment as described in this inquiry. Our decision herein also is not contrary to many of our previous decisions. See, for example, CEO 02-13, CEO 99-8, CEO 91-38, and In re JOHN CURLEE (Commission Complaint No. 89-45).4
Your question is answered accordingly.5
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 19, 2007 and RENDERED this 24th day of October, 2007.
Albert P. Massey, III, Chairman
For prior opinions of the Commission on Ethics, go to www.ethics.state.fl.us
Sarasota County Sheriff's Office General Order 12.2 III. A. 68, included in your inquiry materials, states: "Members shall not use their uniform or Sheriff's Office equipment in any manner other than authorized by the Sheriff."
For purposes of Section 112.313(6), the term 'corruptly' is defined as follows:
'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.]
Under our reasoning herein, it is not necessary for us to discuss the particular powers of sheriffs under Chapter 30, Florida Statutes, and related caselaw.
Of course, in answering your inquiry, as in deciding our previous similar matters, we do not determine whether particular communications or conduct associated with the wearing of a uniform or associated with ones "persona" as a public officer or employee would be violative of the statute. Our decision herein is limited to the mere wearing of the uniform and equipment, with the permission of the Sheriff, under the facts presented.