CEO 77-108 -- July 21, 1977

CONFLICT OF INTEREST

SENATOR USING FUNDS FROM DISTRICT OFFICE EXPENSES TO ADVERTISE AVAILABILITY AND FUNCTIONS OF HIS OFFICE

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(6), F. S. 1975, prohibits a public officer from corruptly using or attempting to use his official position or any property or resource within his trust to secure a special privilege, benefit, or exemption for himself or others. The term "corruptly" is defined in s. 112.312(7), F. S. (1976 Supp.) to mean done with a wrongful intent and for the purpose of receiving compensation or benefit from an act inconsistent with public duty. Neither provision is applicable to a state senator's using funds from district office expenses to purchase newspaper space advising of the availability and functions of his office, unless such use of funds were deemed to be unlawful. Section 11.13(4) sets forth the uses which may be made of district office expenses, including "other types of district expenses when specifically authorized by the Joint Legislative Management Committee." Accordingly, the authorization of the committee appears to be necessary in order for such funds to be expended lawfully, in which case no conflict of interest would exist under the Code of Ethics.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit me, a state senator, from joining with two other senators to use funds from district office expenses to advertise the existence and availability of the services provided by our offices?

In your letter of inquiry you advise that you, Senator Philip Lewis, and Senator Harry Johnston represent the same geographical area, which covers six counties. The three of you would like to use funds from your district office expenses to run a small ad in local newspapers within five counties, excluding Palm Beach County, advising the citizens of those five counties that they should contact your individual offices in West Palm Beach if they have questions concerning legislation, etc. You estimate that the cost, divided three ways, would run approximately $50 to $75 per month for ads approximately two column inches wide and 3 inches long. You further state your belief that the three of you will be providing a service to your constitutents by running these ads once or twice monthly since you represent approximately one million people in six counties, with thousands of new residents moving into the area monthly.

The Code of Ethics for Public Officers and Employees provides in relevant part:

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. . . . [Section 112.313(6), F. S. 1975.]

In turn, the term "corruptly" is defined in s. 112.312(7), F. S. (1976 Supp.), to mean

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.

We address this section of the Code of Ethics because it is the only provision which potentially applies to the situation you have described and, secondly, because we feel that this provision might be violated were a legislator to knowingly spend district office expense funds for a purpose not permitted by law to secure a special privilege or benefit for himself or others. Therefore, we must first determine whether the law permits the use of district office expense funds for advertisements such as you have described.

Section 11.13(4), F. S. 1975, provides as follows:

Each member of the Legislature shall be entitled monthly to receive reimbursement for intradistrict expenses upon his voucher for reimbursement for the payment of expenses of district office rental, rental of office furniture and office equipment, utilities, telegrams, telephone and answering service, postage and post-office box rent, office supplies, photo copies, legal advertising, intradistrict travel expense, part-time clerical or technical help incurred in the performance of his legislative duties, and other types of district expenses when specifically authorized by the Joint Legislative Management Committee. The rules and procedure for reimbursement of the monthly intradistrict expense allowed shall be set from time to time by the Joint Legislative Management Committee, but shall not exceed $300 per month per member. Said reimbursement shall be a proper expense of the Legislature and shall be disbursed from the appropriation for legislative expense. The reimbursement of expenses provided under this subsection shall not include any travel and per diem reimbursed under subsections (2) and (3) of this section or the rules of either house. [Emphasis supplied.]

As the type of expenditure you are contemplating does not fall within those specifically set forth above, it appears that you will need the authorization of the Joint Legislative Management Committee before that expenditure may be made lawfully.

Accordingly, so long as the use of funds from district office expenses to advertise the existence and availability of the services provided by your office is approved by the Joint Legislative Management Committee, as provided by law, we find that the Code of Ethics does not prohibit the use of those funds for such a purpose.