CEO 91-52 -- September 13, 1991

CONFLICT OF INTEREST

CITY COUNCILWOMAN SOLICITING FUNDS

FOR BIRD SANCTUARY AT CITY PARK

To: Kathy A. Schmidt, City Councilwoman (Venice)

SUMMARY:

No prohibited conflict of interest would be created were a city commissioner to use city resources to solicit donations for a nonprofit organization seeking to establish a bird sanctuary and nature center at a city-owned park. Sections 112.313(2), 112.313(4), and 112.313(6), Florida Statutes, would not be violated by such solicitation. Donations received by the organization would not constitute "gifts" to the councilwoman, and she would not be required to disclose as a gift any donation the organization received. CEO's 91-38, 91-37, 84-116, and 83-79, are referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, a member of the Venice City Council, to solicit funds for a nonprofit organization to be used to establish a bird sanctuary and nature center at a City park?

Your question is answered in the negative.

In your letter of inquiry you advise that you are a member of the Venice City Council and that you are interested in soliciting funds for a nonprofit organization that hopes to establish a bird sanctuary and nature center at a City-owned park. You advise that the City will lease the area in the park to the organization for $1 per year and that while some City funds will be used for the project, the sanctuary will be built mainly with community donations. You further advise that this is a pet project of yours and that you would like to write letters to individuals and organizations soliciting funds for the project. You question whether you would be permitted to do so under the Code of Ethics for Public Officers and Employees.

In telephone conversations with our staff, you further have advised that the City is a dues-paying member of the nonprofit organization and that you attend its annual meetings as a representative of the City. You also advise that you would like to use City stationery for your letter of solicitation, with the City paying the mailing expense, and that you may enclose a brochure created and paid for by the City describing the project and soliciting donations.

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 (1989).]

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 (1989).]

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. [Section 112.313(6), Florida Statutes (1989).]

The first of these provisions prohibits a public officer from soliciting or accepting anything of value to the recipient, based upon the understanding that her official action would be influenced. However, under the circumstances you have presented, it does not appear that the solicitation for the establishment of the bird sanctuary and nature center would be made with the understanding that your official action or judgment would be influenced.

Section 112.313(4) prohibits the acceptance of anything of value when the public officer knows, or with the exercise of reasonable care should know, that it was given to influence some official action in which she is expected to participate. Similarly, we are of the opinion that this provision would not be violated under the circumstances presented.

We also have referenced Section 112.313(6), Florida Statutes, regarding misuse of public position. This provision prohibits a public officer from using her official position or resources within her trust to secure a special privilege or benefit for herself or others, where her actions are undertaken with a wrongful intent and for the purpose of obtaining a benefit which is inconsistent with the proper performance of her public duties. Although this statute requires a showing of specific intent which we are not able to address in the context of an advisory opinion, we include this provision because we have addressed it in other opinions and complaints where the public official used his position in a manner which could be inconsistent with the proper performance of his public duties. See CEO 91-38. However, as it appears that the City itself has embraced the proposal to build a bird sanctuary and nature center at the City-owned park, there is no indication that your solicitation for this project using City resources would be inconsistent with the proper performance of your public duties.

There are several other opinions issued by this Commission which are also relevant to your inquiry. In CEO 83-79, we advised that Sections 112.313(2) and 112.313(4), Florida Statutes, would not be violated where a city chief of police solicited donations to enable the police department to establish a mounted patrol. See also CEO 84-116, where we advised that a city commissioner could solicit funds and use city resources in defense of a lawsuit, where the commissioner was being sued for actions he took in his official capacity.

In CEO 91-37, we discussed solicitations of funds by a city councilman in the context of the gift provisions contained in Chapter 90-502, Laws of Florida. There we advised the councilman that he would be prohibited from soliciting donations from political committees and lobbyists who lobbied the city to defray the cost of informational newsletters he intended to send his constituents on a periodic basis. However, we do not find this opinion applicable to your situation, as there is no indication that the donations you are soliciting would in any way benefit you and therefore would not constitute a "gift" pursuant to the definition contained in Section 112.312(9)(a), Florida Statutes. Instead, the donations would benefit the nonprofit organization which is proposing to build the bird sanctuary and nature center. Thus, we would not consider any donations that the organization receives as a result of your solicitations to be a "gift" to you which you would be required to disclose pursuant to Section 112.3148, Florida Statutes, as amended by Chapter 90-502, Laws of Florida.

Accordingly, we find that the Code of Ethics for Public Officers and Employees would not prohibit you from soliciting funds for a nonprofit organization which is proposing to build a bird sanctuary and nature center at a City-owned park.