CEO 88-54 -- September 8, 1988

CONFLICT OF INTEREST; VOTING CONFLICT

CITY COMMISSIONERS ACCEPTING PUBLICITY SERVICES

FROM PUBLIC RELATIONS FIRM RETAINED BY CITY

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

SUMMARY:

No prohibited conflict of interest would be created were city commission members to accept complimentary publicity services from a public relations firm which is retained by the city. There is no indication from the facts presented that Section 112.313(2) or (4), Florida Statutes, would be violated given the limited and occasional nature of the services provided and the fact that the commissioners would receive the services as former candidate clients of the firm. CEO's 78-90, 79-22, and 82-17 are referenced. The Commission members would not be prohibited from voting to hire the public relations firm by Section 112.3143, Florida Statutes, as they would not benefit from the decision and as the firm is not a principal by which they are retained.

QUESTION 1:

Would a prohibited conflict of interest be created were members of a city commission to accept complimentary publicity services from a public relations firm which is retained by the city?

Under the circumstances presented, this question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you advised that ...., ...., ...., and .... are members of the City Commission of the City of Miami Beach. Each of these Commissioners formerly employed a particular public relations firm to manage his campaign in the City's most recent general election. You also have advised that the firm submitted a bid and was selected by the City Commission to provide public relations services which would compliment and enhance the work of the City's Office of Public Information in disseminating information and promoting a positive image for the City. The City awarded a one-year contract to the firm, cancellable on 30-days notice, to perform public relations services for the City for $1 plus expenses not exceeding $6,000.

You question whether a prohibited conflict of interest would be created were the Commissioners to accept complimentary publicity services from the public relations firm while that firm is retained by the City. The Commissioners have advised that they have no present or ongoing contractual relationship with the firm. The complimentary services have involved occasional releases or telephone calls to the media regarding civic activities of the Commissioners, such as appointments or elections to positions, or regarding events at which a Commissioner may speak on projects of importance to the City. It appears that these kinds of services have been provided to other public officials, including Commissioners who had not retained the firm for their campaigns, as well as to other persons who do not hold public office. In at least some of these instances these services have been provided as part of the involvement of the president of the firm in local civic organizations.

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

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. [Section 112.313(2), Florida Statutes (1987).]

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. [Section 112.313(4), Florida Statutes (1987).]

While Section 112.313(2) prohibits a public officer from accepting anything of value based upon an understanding that his official actions would be influenced, Section 112.313(4) prohibits a public officer from accepting anything of value when the officer knows, or with the exercise of reasonable care should know, that it was given to influence some official action in which he was expected to participate.

Therefore, the Code of Ethics does not absolutely prohibit a public officer from accepting anything of value from a business entity which may be doing business with his agency. Whether an official may accept a gift depends on the intent of the donor and the circumstances under which the gift is given. In this case, there is no indication from the facts presented that the Commissioners' receipt of the publicity services is based upon any understanding that their official actions will be influenced. Nor do we find that the circumstances are such that with the exercise of reasonable care the Commissioners should know that these services are given to influence some action in which they are expected to participate.

In previous opinions we have considered the existence and nature of a prior relationship between a public officer and a donor in determining the existence of intent to influence official actions. See CEO 78-90 and CEO 79-22. Here, the Commissioners privately employed the public relations firm in the past. In addition, we consider the limited and occasional nature of the complimentary services provided by the firm, as they have been described by the Commissioners, not to be so substantial as to imply an intent to influence the Commissioners' official actions. See CEO 82-17, in which we found that city employees serving on an advisory council to an insurance company which was providing insurance to city employees could accept dinners at monthly dinner meetings of the council and reimbursement for expenses.

Accordingly, we find that under the circumstances presented no prohibited conflict of interest would be created were the City Commissioners to accept complimentary publicity services from a public relations firm which is retained by the City.

QUESTION 2:

Are the members of a city commission prohibited by Section 112.3143, Florida Statutes, from voting to retain a public relations firm from which they have received complimentary publicity services?

This question also is answered in the negative, under the circumstances presented.

You also question whether the City Commissioners who have received complimentary publicity services from the public relations firm could vote to retain the services of the firm for the City. With respect to voting conflicts of interest for local officials, the Code of Ethics provides:

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. [Section 112.3143(3), Florida Statutes (1987).]

Under this provision a city commissioner is prohibited from voting on a particular matter only if the measure under consideration would inure to his special private gain or to the special gain of a principal by whom he is retained. We find no basis to conclude that the hiring of the public relations firm would inure to the special gain of any of the subject Commissioners. It also is clear that the public relations firm is not a principal which has retained any of the Commissioners.

Accordingly, we find that the Code of Ethics would not prohibit the City Commissioners who have received complimentary publicity services from the public relations firm from voting to retain that firm to provide public relations services for the City.