CEO 91-38 -- July 19, 1991

CONFLICT OF INTEREST

CITY COUNCIL MEMBER USING STATIONERY SIMILAR TO OFFICIAL CITY

STATIONERY AND NOT PURCHASED WITH PUBLIC FUNDS FOR PURPOSES

NOT DIRECTLY RELATED TO CITY BUSINESS

To: (Name withheld at the person's request.)

SUMMARY:

No prohibited conflict of interest is created automatically 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 is not paid for with city funds. However, the use of such stationery in a particular context may constitute a corrupt misuse of official position in violation of Section 112.313(6), Florida Statutes, to the same extent as the use of plain stationery in a letter that refers to the council member's public position.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit a city council member from using privately purchased stationery bearing a reproduction of the image of the city's seal, the title of the Council member, the name of the city, the city hall address and telephone number, and a statement that the stationery was not paid for with city funds, for purposes not directly related to city business?

Your question is answered in the negative.

In your letter of inquiry, telephone conversation with our staff, and further written materials transmitted to our staff, you advise that . . . . , a member of the City Council of the City of Lauderhill, inquires whether the Code of Ethics prohibits her from using stationery bearing a reproduction of the seal of the City, her title, her name, the name of the City, the address and telephone number of City hall, and a statement that the stationery was not paid for with City funds, for campaign purposes, fund-raising purposes, and personal letters. You further advise that the stationery would not be paid for with public funds.

Section 7.03 of the City's charter provides:

The city clerk shall act as the clerk of the council and shall perform such other duties as may be prescribed by the mayor. As clerk, s/he shall have custody of the public records of the city, shall be official custodian of the seal of the city and shall affix the said seal to all instruments requiring same.

It is the position of your office that this provision of the City Charter prohibits the use of the actual impression seal of the City by anyone except the City Clerk, but that the Charter does not in any way prohibit the use of the seal by elected officials for other purposes, such as the reproduction of the image of the seal on stationery utilized by the elected officials. The stationery in question would have the image of the seal reproduced on it and would not bear the impression seal.

Section 112.313(6), Florida Statutes, is the provision of the Code of Ethics applicable to your inquiry. It provides:

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31.

For purposes of this provision, 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 public duties. [Section 112.312(7), Florida Statutes.]

This provision prohibits the Council member from corruptly using property or resources within her trust to secure for herself or others a special privilege, benefit, or exemption.

Arguably, use of the City seal, one's official title, and the name of the City even on stationery not paid for by City funds constitutes a use of public position that may be violative of Section 112.313(6), when such use has no public purpose. However, a situation virtually identical to the facts you present recently came before this body in the context of a complaint, In re ILENE LEIBERMAN, Complaint No. 90-71. In that matter, the Mayor of the City of Lauderhill used stationery the same as that proposed for use by the Council member, with the title and personal name being the only differences, for writing City electors and recommending to them particular candidates in a City Council election. There, we found that probable cause did not exist to believe that the Mayor had corruptly misused her official position. Previously, we found in In re John Curlee, Complaint No. 89-45, that a highway patrolman's wearing of his uniform while appearing in a television commercial for a Florida Senate candidate did not violate Section 112.313(6). The argument put forth by the highway patrolman was that his uniform was part of his persona and that its use was protected as constitutional free expression. It therefore seems equally true, under the facts before us, that the Council member's use of such stationery, provided it is not paid for with City funds, is not automatically prohibited by the Code of Ethics.

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.

While we do not possess the authority to make a final interpretation or adjudication of the meaning of the provision of the City Charter quoted above, there does seem to us to be a distinction between use of the City's official impression seal on stationery or documents when such use is not for a public purpose and use of the image of the seal in printed form on stationery not paid for by public funds. Use of the impression seal for other than public purposes would inhibit its availability for use for public purposes and could constitute or lead to fraudulent authentication of documents as official records or true and correct copies of public records.

Further, the Legislature has recently enacted Chapter 91-59, Laws of Florida, which provides:

Section 1. 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 section 775.082 or section 775.083, Florida Statutes.

Section 2. This act shall take effect upon becoming a law.

If the City Council of Lauderhill designates an official municipal seal pursuant to this law, you should request another opinion from us, as this law would appear to limit your use of a reproduction of the City seal on stationery not used for official business.

Accordingly, we find that use of stationery not purchased with public funds and bearing a reproduction of the city's seal, the title of the council member, the name of the city, the city hall address and telephone number, and a statement that the stationery was not paid for with city funds, for purposes not directly related to city business, is not prohibited by the Code of Ethics for Public Officers and Employees.