CEO 92-21 -- June 5, 1992

CONFLICT OF INTEREST

COUNTY SHERIFF OWNING LOCAL NEWSPAPER

To: Jon Lane, Sheriff of Osceola County (Kissimmee)

SUMMARY:

No prohibited conflict of interest would be created were a county sheriff to become either owner or part-owner of a Spanish language newspaper located in his county. Section 112.313(12)(c), Florida Statutes, exempts the sheriff from the prohibitions against doing business with his own agency and having a contractual relationship with a business entity doing business with his agency, so that the Sheriff would not be prohibited from placing legal notices and advertisements in the newspaper. However, other advertisements paid for by his agency are prohibited unless the amount in the aggregate per year is less than $500. CEO 90-15 is referenced.

QUESTION:

Would a prohibited conflict of interest be created were you, a County Sheriff, to become either owner or part-owner of a Spanish language newspaper located in the County?

Under the circumstances, your question is answered in the negative.

In your letter of inquiry and through Commission staff's conversation with your proposed business partners, we are advised that you are the Sheriff of Osceola County and are interested in either owning or becoming part-owner of a Spanish language newspaper. You advise that unlike other newspapers that are circulated in the County, this newspaper would originate in the County and be distributed in the County and its surrounding areas. You also advise that your involvement with the newspaper would be limited to acting as a stockholder and doing bookkeeping. Although you would have no involvement either in the day to day operations of the paper or in its direction, you are concerned about whether there are conflicts of interest that would prevent your participation.

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

DOING BUSINESS WITH ONE'S AGENCY.--No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee of his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), Florida Statutes.]

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. [Section 112.313(7)(a), Florida Statutes.]

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(9), Florida Statutes (1991).]

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. [Section 112.313(8), Florida Statutes.]

Section 112.313(3) prohibits you from acting in your official capacity as a purchasing agent to purchase any services for the Sheriff's Department from a business entity of which you are an officer, partner, director, or proprietor or in which you own a material interest and from acting in a private capacity to sell any services to your public agency, the Sheriff's office. In addition, Section 112.313(7)(a) prohibits you from having any employment or contractual relationship with a business entity that is doing business with your agency. These prohibitions include the sale of newspaper advertisements to the Sheriff's office and the purchase of newspaper advertisements from your newspaper by the Sheriff's Office. See CEO 90-57.

Sections 112.313(12)(c) and 112.313(12)(f), however, provide exemptions to the application of these prohibitions, where

The purchase or sale is for legal advertising in a newspaper, for any utilities service, or for passage on a common carrier. (Emphasis supplied.)

The total amount of the transactions in the aggregate between the business entity and the agency does not exceed $500 per calendar year.

We therefore find that no prohibited conflict of interest would be created were a newspaper, which you either own or have a part-ownership in, to publish the legal notices and advertisements of the Sheriff's office. See CEO 78-30, CEO 82-68 and CEO 90-57. We noted in CEO 90-57 that we do not consider employment advertisements to be "legal advertisements" because legal advertisements are made for the purpose of providing notice of particular legal or administrative actions, as required by law, rather than for the purpose of notifying the public of employment opportunities or of the availability of products or services for sale. Therefore, advertisements such as those notifying the public of employment opportunities would be prohibited unless the total amount of the advertisements in the aggregate do not exceed $500 per calendar year. Legal notices published by the Clerk of the Court would not be affected by the prohibition because the Clerk's Office is a separate agency.

Additionally, you should be aware that Section 112.313(6) prohibits you from using or attempting to use your official position to secure a special privilege, benefit, or exemption for yourself or others, where your actions are undertaken with a wrongful intent for the purpose of obtaining some benefit resulting from actions which are inconsistent with the proper performance of your public duties. Therefore, you should be careful, for example, not to use your position to encourage anyone to either advertise in your paper or to provide greater access to your newspaper's staff.

We found in CEO 90-15 that a city commissioner's use of his newspaper column to promote his 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 himself. Nevertheless, we found that such a practice would not violate Section 112.313(6) because any views that he took in his column would be taken in his private capacity. We also found, assuming that his name was published along with his column, that name recognition was not sufficient to constitute a use of public office. Therefore, as long as public resources were not involved in the production of the city commissioner's column, Section 112.313(6) was found not to apply. We also advised that he might want to avoid using his column as a vehicle to promote himself politically in order to avoid even the appearance of impropriety. The same reasoning that we used in CEO 90-15 applies to your situation.

Finally, Section 112.313(8) prohibits you from using any information not available to members of the general public and gained by reason of your official position for your personal benefit or for the personal benefit of any other person or business entity. Therefore, you are advised not to use information, such as confidential criminal investigative information, in order to give your newspaper an advantage over other newspapers covering your County. See CEO 90-15.

Accordingly, we find that no prohibited conflict of interest would be created were you, a Sheriff, to either fully or partly own a Spanish language newspaper in your County.