CEO 90-15 -- March 8, 1990

CONFLICT OF INTEREST

CITY COMMISSIONER EMPLOYED AS NEWSPAPER REPORTER

To: Mr. Richard J. Taylor, City Attorney, City of Sarasota

SUMMARY:

A city commissioner is not prohibited from being employed by a newspaper to write newspaper articles which concern the activities and business of the city commission. In doing so, he must avoid using information not available to the general public gained because of his public position. He would be prohibited by Section 112.3143(3), Florida Statutes, from voting on matters which would inure to the special private gain of his employer, the newspaper.

QUESTION 1:

Would a prohibited conflict of interest be created were a city commissioner to be employed as a newspaper reporter to write articles which concern the business and activities of the city commission?

Your question is answered in the negative.

In your letter of inquiry you advise that John G. "Jack" Gurney serves as a member of the Sarasota City Commission and has been offered a position as a reporter with a local newspaper, having previously been employed as a reporter and in other positions with local newspapers. Should he accept this offer, he would write a column on activities which relate to City government. The articles would be of an informative rather than investigative nature and would not be written by him in his official capacity.

In regard to your question Section 112.313(7)(a), Florida Statutes, states:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties.

You have not provided us with any information which would indicate that the local newspaper is doing business with the City. We note that the purchase or sale for legal advertising would be exempted from the prohibition of Section 112.313(7)(a). See Section 112.313(12)(c), Florida Statutes, and CEO 82-68. Nor are we aware of any circumstances which would indicate that the newspaper is subject to the regulation of the City.

In regard to the prohibition of a continuing conflict, presumably from time to time the newspaper which would employ the Commissioner may take and express editorial positions on City government issues. It perhaps could be argued that the Commissioner could feel compelled to use his public office to support a position endorsed by the paper. In CEO 89-29, however, we found that the fact that a chamber of commerce would regularly express opinions about what city government should do did not prohibit a city commissioner from being employed by the chamber. Similarly, in this instance, we do not believe that the likelihood of the newspaper's publishing positions on City government issues is sufficient to create a frequently recurring conflict with the Commissioner's ability to remain impartial in forming positions on City issues.

There also may be the perception that the Commissioner was offered the position because of his public position. In regard to this perception, Section 112.313(2) and Section 112.313(4), Florida Statutes, state:

SOLICITATION OR ACCEPTANCE OF GIFTS.--No public officer, employee of an agency, or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, or candidate would be influenced thereby.

UNAUTHORIZED COMPENSATION.--No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity.

These provisions would prohibit a public official from accepting something of value when there is an understanding, or the public officer knows, that it was given to influence his official action. Here, however, you have not given us any indication that such an understanding or such knowledge exists. In addition, it does not appear that a newspaper is a type of business activity which regularly would be affected by the decisions of city government. Therefore, you have not provided us with information which would indicate that Section 112.313(2) or Section 112.313(4), Florida Statutes, would be violated if the Commissioner were to accept the position with the newspaper.

Section 112.313(6), Florida Statutes, states:

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.

As few people would be in a better position to know the business of the Commission than a Commissioner, it may be that the Commissioner is being offered this job with the newspaper because of his public position. It could be argued that the Commissioner is using his public position to obtain a job. In our view, however, there would be no "corrupt" intent on the part of the Commissioner, absent some understanding that his objectivity as a Commissioner would be compromised to benefit the newspaper. Here, the circumstances do not indicate that any such understanding exists. Therefore, the fact that he may have been offered employment as a newspaper writer because he is a City Commissioner, without more, does not appear to violate Section 112.313(6), Florida Statutes.

Use of the newspaper column to promote the Commissioner's stand on a political issue, to criticize the stance of a political opponent, or to promote his record of service in public office could achieve political benefits for him. Nevertheless, it does not appear that such a practice would violate Section 112.313(6), Florida Statutes. In our view, his actions in writing the column would be taken in his private capacity rather than in his public capacity. Although most reading the article will recognize his name and know that he is a City Commissioner, this factor of name recognition alone is not sufficient to constitute a use of public office. To find otherwise would prohibit a public official from engaging in almost any private business. Therefore, as long as the column does not involve any use of public resources, it does not appear that Section 112.313(6), Florida Statutes, would apply. He may wish, however, to avoid using this as a vehicle to promote himself politically in order to avoid even the appearance of impropriety.

In addition, Section 112.313(8), Florida Statutes, provides:

DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity.

Use by the Commissioner of his official position to gain information unavailable to the general public in order to benefit himself or the newspaper could violate this Section, in addition to possibly violating Section 112.313(6). In CEO 88-38, we opined that a city mayor did not violate these sections in writing articles for a community newsletter on a voluntary basis when all information contained in the articles was from public records. See also CEO 88-21 and CEO 83-13. Similarly, here, all information in any article the Commissioner writes should be available to the general public in order to avoid violating either of these provisions.

Generally, information derived from public records or public meetings is available to the public, and therefore, the Commissioner would be free to use this information in his column. Presumably, most of the information with which he deals would be of this type. Obviously, he could not use information which is exempted or not subject to the public records law in an article. Similarly, conversations with City staff consisting of information which is public record and which would be discussed or explained with any member of the public could be used as the basis of a column. When the conversations concern information which is exempted from or not subject to the Sunshine Law or public records law, then the content of such conversations cannot be used in a column.

In addition, we would caution the Commissioner to avoid use of City personnel or supplies in connection with his newspaper work.

Accordingly, under the described circumstances we find that no prohibited conflict of interest would be created were the subject Commissioner to be employed to write a column in a local newspaper in his private capacity.

QUESTION 2:

If the City Commissioner were an employee of a local newspaper, under what circumstances would Section 112.3143(3), Florida Statutes, require him to abstain from voting on a measure?

Section 112.3143(3), Florida Statutes, states:

No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain or shall knowingly vote in his official capacity upon any measure which inures to the special gain of any principal, other than an agency as defined in s. 112.312(2), by whom he is retained. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. However, a commissioner of a community redevelopment agency created or designated pursuant to s. 163.356 or s. 163.357 or an officer of an independent special tax district elected on a one-acre, one-vote basis is not prohibited from voting.

This section would require the Commissioner to abstain from voting and to file a memorandum of voting conflict in matters which inure to his special private gain or the special gain of his employer, the newspaper. In regard to a measure on which the newspaper has expressed a public position, the Commissioner would not be prohibited from voting on the measure unless the newspaper would somehow benefit from the vote. See CEO 83-14 and 78-72. Examples of "special private gain" to the newspaper would include such measures as the rezoning of property owned by the newspaper and sales by the newspaper to the City. As it is preferable to address such measures specifically rather than generally, we suggest that if such a measure is brought before the City Commission, the Commissioner should seek a further opinion or contact our staff for guidance.

Accordingly, we find that the subject City Commissioner would be required to abstain and file a memorandum of voting conflict in regard to matters which inure either to his special private gain or to the special gain of his employer, the newspaper.