HomeMy WebLinkAbout05-29-2002 Use of City Business Cards - Commission on EWthics OpinionBROWN, WARD, SALZMAN & WEISS, P.A.
ATTORNEYS AT LAW
Usher L. Brown •
Suzanne D'Agresta
Anthony A. Garganese°
Gary S. Salzman*
John H. Ward •
Jeffrey S. Weiss
Debra S. Babb
Jeffrey P. Buak
Alfred Truesdell
Joseph E. Blitch
Scott D. Danahy
Brett A. Marlowe
Cheyenne R. Young
Board Certified Civil Trial Lawyer
° Board Certified Business Litigation Lawyer
Board Certified City, County & Local Government Law
May 29, 2002
Via Hand Delivery
The Honorable Paul P. Partyka and
Members of the City Commission
City of Winter Springs
1126 East S. R. 434
Winter Springs, FL 32708
Two Landmark Center
225 East Robinson Street, Suite 660
Post Office Box 2873
Orlando, FL 32802-2873
(407) 425-9566
(407) 425-9596 FAX
Email: agarganese@orlandolaw.net
Website: www.orlandolaw.net
Re: Use of City Business Cards - Commission on Ethics Opinion
Dear Mayor Partyka and Members of the City Commission:
Cocoa: 866-425-9566
Enclosed for your review is the draft advisory opinion prepared by the Florida Commission
on Ethics staff and which was received in my office yesterday. This opinion will be considered at the
Ethics Commission's next meeting on June 6, 2002.
If any member of the City Commission wishes to comment on the draft opinion, we need to
submit those comments in writing to the Commission on Ethics no later than noon on June 3, 2002.
Therefore, please provide me with any additional comments by the end of this week.
The Honorable Paul P. Partyka and
Members of the City Commission
May 29, 2002
Page 2
As we previously discussed, the purpose of an advisory opinion is to seek guidance regarding
the "applicability and interpretation' of the Florida Code of Ethics for public officers given the facts
presented and the current status of the law. Additionally, because a formal opinion has been
requested by the City Commission, the opinion issued by the Ethics Commission "shall be binding on
the conduct"of the Mayor and City Commission, until the opinion is amended or revoked. Any
further comments to the Ethics Commission should be presented with this in mind.
Should you have any questions or concerns regarding this draft opinion, please do not hesitate
to contact me.
I
trul yours,
Anthony A. Garganese
City Attorney
AAG:jf
Enclosures
Draft Advisory Opinion
Commission on Ethics Public Agenda
F:\DOCS\City of Winter Springs\Ethics\Mayor.Commissioners.DraR.opinion.wpd
Proposed opinion recommended by,
staff NOT ADOPTED BY ETHICS
COMMISSIC N. To be considered at
public meeting . (See attached notice)
FILE 2323--May 21, 2002
CONFLICT OF INTEREST
CITY OFFICIALS USING CITY BUSINESS CARDS
IN PRIVATE AFFAIRS
To: Anthony A. Garganese, City Attorney, City of Winter
SUMMARY:
Although no definitive answer can be provi
official's use of a city business card to promote
business would create a prohibited
FloridaAStatutes. �wever, ift
incidentally receives a private or bush
created. CEO's 75-45, 77 175= -38,
�A
profit, gain, or
)n 112.313(6),
aid the official
conflict likely is not
N.
be created were a City Commissioner or
or otherwise) a City business card with the
foUersonal profit n?'
nN
mative, subject to the qualifications noted below.Z
)You structured the mquir a' four numbered question We view the inquiry substantively as one question.
Thus, we have consolidated and restated the inquiry as one question
2As with most, if not all, of our advisory opinions regarding Section 112.313(6), Florida Statutes, the
instant opinion is not conclusive, inasmuch as questions of intent and evidential nuances regarding the statute cannot
be definitively addressed absent a particular factual record.
Page 2 File 2323
By your letter of inquiry we are advised that as City Attorney for the City of Winter Springs
you are making inquiry in behalf of the City's Mayor and Commissioners3 regarding various uses of
their City business cards. Further, we are advised that at nominal expense the City provides each
Commissioner and the Mayor with City business cards; that the cards are ordinary, simple, and
similar to typical business cards carried by millions of people; that the cards contain general
information regarding the City, including a copy of the City seal and the City's name, address, and
telephone/fax numbers; and that the cards are "personalized" for each Commissioner and the Mayor
by including their respective names, City titles, and e-mail addresses. Also, we are advised that the
Commissioners and the Mayor regularly carry the cards on their persons and distribute the cards in
many situations, to identify themselves and to provide contact information. Further, you write that
the City cards, as is true in every setting where business cards are used, serve to identify the name
and status of the person presenting the card; that the card has the desired effect of being a convenient
means of introduction and elimination of confusion in identifying and communicating with
individuals; that, for the most part, the use of business cards is a matter of personal taste and local
custom, but that one could reasonably argue there is an "implied notion" in our society that a
business card is part of an individual's persona and thus there is an expectation that business cards
will be used in a variety of personal and business situations; and that there is an expectation that
elected officials will use their public status business cards as an efficient and cost-effective means
of introducing themselves to constituents, community leaders, developers, and others in a variety of
situations in order to promote the community that elected them. Additionally, you write that the
3We are advised that Paul P. Partyka serves as Mayor and that Robert S. Miller, Michael S. Blake, Edward
Martinez, Jr., Cindy Gennell, and David W. McLeod serve as members of the City Commission.
Page 3 File 2323
Commissioners and the Mayor predominantly use City business cards for identification purposes
while performing official duties and attending government -related functions, but that on occasion
they would like to use the cards as a means of introducing and identifying themselves when engaged
in other affairs, including personal affairs. For example, you write further, in the course of
conducting private business affairs a Commissioner and/or the Mayor also may identify an
opportunity to promote the City, and during the course of this "dual private/public situation" a City
business card may be presented, in person or in correspondence, to an individual for identification
and information purposes and as a gesture of goodwill.
The Code of Ethics for Public Officers and Employees provides in relevant part:
MISUSE OF PUBLIC POSITION. --No public officer,
employee of an agency, or local government attorney shall corruptly
use or attempt to use his or her official position or any property or
resource which may be within his or her trust, or perform his or her
official duties, to secure a special privilege, benefit, or exemption for
himself, herself, or others. This section shall not be construed to
conflict with s. 104.31. [Section 112.313(6), Florida Statutes.]
'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 or her public
duties. [Section 112.312(9), Florida Statutes.]
Section 112.313(6) prohibits public officials from corruptly using or attempting to use their official
positions or property or resources placed within their trust due to their status as public officials, and
it prohibits them from corruptly performing their official duties in order to secure a special privilege,
Page 4 File 2323
benefit, or exemption for themselves or another.
While we have not rendered an advisory opinion directly on point concerning the use of
governmental business cards you describe, we have made several findings or dispositions relevant
to your inquiry. In CEO 75-45, we opined that the Code of Ethics contained no provision which
would prohibit a State Representative from enclosing a business card (printed at his own expense
and containing a picture of himself, his name, reference to his public office and political party,
district designation, telephone number, and consumer assistance telephone numbers) in
correspondence to his constituents.' In CEO 77-175, we opined that Section 112.313(6) would not
be violated were a State Senator to send copies of a brochures (titled "The Florida Senate" and
stamped inside the back cover with the message "Compliments of Senator ... , District ... , ... ,
Florida") to persons or groups requesting copies, reasoning that "the stamped message would serve
a function similar to that of a cover letter or a business card," citing favorably to CEO 75-45, but
stating that we perceived a possible violation of Section 112.313(6) would exist were copies of the
brochure to be sent unsolicited as, for example, part of an election campaign effort. In Commission
Complaint No. 90-249, In re John Reed Buckley, we dismissed as legally insufficient (via our Public
Report And Order Dismissing Complaint rendered July 24, 1991) an allegation that a member of an
4At the time CEO 75-45 was rendered, the relevant provision of law was codified at Section 112.313(4),
Florida Statutes (Supp. 1974), and read as follows:
No public officer or employee of an agency shall corruptly use, or
attempt to use, his official position, or perform his official duties, to secure
special privileges, benefits, or exemptions for himself or others.
See also Chapter 74-177, Laws of Florida.
5Presumably generated using public (Legislative) funds.
Page 5 File 2323
airport authority used his official business cards (paid for with public funds) to promote the
candidacy of persons seeking seats on the authority by writing the names of preferred candidates on
the cards and handing the cards out at gatherings.b In CEO 91-38, we opined that a prohibited
conflict under Section 112.313(6) is not automatically created by a city council member's use of
stationery similar to the city's official stationery for campaign, fund-raising, and personal purposes
when the stationery was not paid for with city funds, citing favorably to the Lieberman and Curlew
complaint matters, supra, but leaving open the possibility that a corrupt use could occur in a specific
situation. More particularly, in CEO 91-38, we stated:
We are of the opinion that whether a corrupt misuse of official
position has occurred in a given situation depends on how and for
what purpose the stationery will be used, rather than upon the fact of
its use. In terms of whether the Council member's letter would be a
corrupt misuse of position, we see no difference between her using
the proposed stationery and her using plain stationery for a letter in
which she refers to herself as a Council member. Either way, the
recipient of the letter is informed of the Council member's public
position. This may be appropriate, as in the political contexts noted
above, or it may be inappropriate, for example, if the letter were being
sent to settle a strictly private dispute with a debtor or creditor.
In Commission Complaint Nos. 88-112 and 89-09 (Consolidated), In re James K. Gordon, we
entered a Final Order And Public Report Upon Mandate Of The District Court Of Appeal, finding
as we had in our initial consideration of the matter that a city commissioner violated Section
6Our dismissal of the Buckley matter was based on the complaint's not containing sufficient factual
allegations to indicate corruption or wrongful intent (was based on inadequate pleading). The Buckley matter cited
with apparent approval our decisions in Complaint No. 89-45, In re John Curlee (State trooper appearing in uniform
in a campaign advertisement for a State Senate candidate) and Complaint No. 90-71, In re Ilene Lieberman (mayor
endorsing several candidates for the town council on letterhead that appeared to be similar to that of the town's but
was not paid for with public funds), in which we determined that Section 112.313(6) was not violated.
Page 6 File 2323
112.313(6) by using city stationery and envelopes on behalf of a private university for which he was
doing consulting work (promoting a symposium).' In Commission Complaint No. 96-241, In re
Robert D. Moore, we found that a county tax collector violated the statute by using letterhead
stationery of the tax collector's office to endorse a candidate for the office of tax collector and by
using the State seal on a private document (via reproduction on a paid political advertisement letter
to voters signed by the respondent identifying himself as tax collector). Thereafter, in 1998, we
found that there was no probable cause to believe a city commissioner violated Section 112.313(6)
by using resources of his office for his own benefit in the mailing of 467 letters to elected officials
around the State for the alleged purpose of soliciting business for his law firm, apparently relying
on our Advocate's recommendation that corrupt intent could not be proven in the matter because, in
view of the commissioner's departure from office via his not seeking reelection, it could have been
argued that the letters created a public benefit via informing the recipients (who were various
members of the Florida League of Cities, some of whom had known the commissioner through his
public office) of his departure. See our Public Report and the Advocate's Recommendation in
Commission Complaint No. 98-31, In re Ron Weaver. Most recently, in CEO 99-8, we opined that
a circuit court clerk's providing a letter of recommendation for an appointment, job, or grant for a
person who has nothing to do with the business of the clerk's office, using stationery purchased with
her own personal funds that identifies the writer as the clerk or using official stationery and public
resources, would not violate any provision of the Code of Ethics, provided there was no quid pro quo
of value to the clerk in exchange for the recommendation (such as a campaign contribution),
provided there was no benefit to the clerk other than the incidental political benefit of gaining the
7See Gordon v. State Com'n on Ethics, 609 So. 2d 125 (Fla. 4th DCA 1992).
Page 7 File 2323
goodwill of the constituent, and provided (as to official stationery) there existed no rule, regulation,
or policy prohibiting use of the resources of the public office for such purposes!
In view of these advisory opinions and complaints bearing on the use of official business
cards, official stationery, private stationery (plain and "official/look alike"), use of public resources,
and use of public position, we are persuaded that regarding your inquiry the controlling factor is (and
should be) not whether the official business cards are publicly purchased or whether they contain
information that identifies the named person as a public official, but, rather, whether they are used
in a manner or in a context supportive of the wrongfulness or corruption required by the statute.
Regarding use of public resources or position under Section 112.313(6), the District Court of Appeal
has recognized that the statute is not violated in situations where there is a valid public purpose for
the use, notwithstanding that the use provides an incidental private benefit to the official. See
Blackburn v. State Commission on Ethics, 589 So. 2d 431 (Fla. 1st DCA 1991).
Therefore, under Blackburn, we find that use of the cards by the Mayor or a Commissioner
for private purposes (such as promoting themselves for personal profit or gain) would create a
prohibited conflict, inasmuch as there would be no primary, valid public purpose for the use.
However, we note that incidental private benefit flowing to the Mayor or a Commissioner from use
of the cards to identify himself or herself while performing official duties or attending City -related
8CEO 99-8 cites two Commission complaint matters which are factually similar to and which support the
conclusion and reasoning of CEO 99-8, via findings of no probable cause. The matters are In re George Keller,
Commission Complaint No. 97-169, and In re Thomas R. Mariani, Commission Complaint No. 96-238.
Page 8
File 2323
functions (as mentioned in your correspondence) likely would not be violative of the statute.' As
the Blackburn Court stated:
We find nothing in the language of these sections that
suggests the incidental benefit appellant may have received or
enjoyed in respect to her campaign for reelection by having a county
employee draft the subject article was intended to be covered by this
code of ethics. Both the hearing officer and the Ethics Commission
agreed that it would have been appropriate for appellant to have
obtained the information and written article in this case to use in her
9ProvWed that use of the cards is not (expressly or impliedly) coupled with any intimidation, threat,
coercion, quid -pro -quo solicitation. or similar communication relevant to the official's public position as discussed in
CEO 91-38), and provided that use of the cards is not in contravention of any applicable rule, regulation, policy, or
other standard prohibiting such use (see CEO 99-8). However, if the City's or the State's seal is on the cards (as is
represented to be the situation regarding the City's seal), Sections 165.043 and 15.03, Florida Statutes, respectively,
may constitute such a rule, regulation, policy, or standard. The statutes provide.
The governing body of a county or municipality may, by ordinance,
des epmate an official county or municipal scat. The manufacture, use, display, or
other employment of any facsimile or reproduction of the county or municipal
seal, except by county or, municipal officials or employees in the performance of
their official duties, withoui the express approval of the governing body is a
second degree misdemeanor, punishable as provided in s.775.082 or s.775.083.
(Section 165.043, Florida Statutes.)
(1) The great seal, of the state shall be the size of the American
silver dollar, having in the center thereof a view of the sun's rays over a highland
in the distance, a sabal palmetto palm tree, a steamboat on water, and an Indian
female scattering flowers in the foreground, encircled by the words 'Great Seal
of the State of Florida: In God We Trust.'
(2)(a) The Department of State shall be the custodian of the great
seal of the state.
(b) The great seal of this state shall also be the seal of the
Department of State ....
(3) .... Any facsimile or reproduction of the great seal shall be
manufactured, used, displayed, or otherwise employed by anyone only upon the
approval of the Department of State. The Department of State may grant a
certificate of approval upon application to it by any person showing good cause
for the use of the seal for a proper purpose. The Department of State may adopt
reasonable rules for the manufacture or use of the great seal or any facsimile or
reproduction thereof. Any person violating the provisions of this subsection is
guilty of a misdemeanor of the second degree, punishable as provided in
s.775.082 or s.775.083. [Section 15.03, Florida Statutes.)
Page 9
File 2323
official capacity as County Commissioner apart from being used in
the reelection campaign. Appellant insisted that the employee's work
product was intended to be used and was in fact used for dual
purposes: to inform the public as a county commissioner of an issue
of vital importance to the county citizens, and to assist appellant in
her reelection campaign. The first purpose is obviously a valid one,
and the pertinent statutory language provides no basis for converting
that valid purpose into an illegal or unethical act simply because the
information was also to be used in a political campaign. There is no
evidence in the record, apart for appellant's having freely admitted use
of the article in her campaign, that disputes or contradicts her
testimony regarding her intent to use the material for both purposes.
The record does not contain competent substantial evidence to
support a finding of fact that appellant's only purpose in obtaining the
article was to corruptly use her office to obtain a prohibited benefit
for use in her campaign.
Blackburn, at 435 and 436. (Emphasis original.)
Further, this opinion, as is the case with most if not all of our advisory opinions construing
Section 112.313(6), is not conclusive as to the questions presented, due to the factual or evidential
nuances or issues not susceptible to presentmcnt or determination in the context of an advisory
opinion; therefore, all should be mindful that this opinion is not controlling in the context of ethics
complaints, if any, which might be brought regarding actual use of official business cards.
Accordingly, subject to the conditions, caveats, and/or evidential/factual cautions identified
above, we find that use of City business cards by the Commissioners and the Mayor for private
promotion or gain would create a prohibited conflict of interest under Section 112.313(6), Florida
Statutes, but that a valid public use of the cards (which merely provides an incidental private benefit
to the official) likely would not.
Page 10 .
cc: Anthony A. Garganese, Esquire
CCA/RSS/mwf
Enclosures: CEO's 75-45, 77-175, 91-38, 99-8
File 2323
STATE OF FLORIDA
COMMISSION ON ETHICS
Meeting Thursday, June 6, 2002, 8:30 a.m.
Department of Transportation Auditorium
605 Suwannee Street
Tallahassee, Florida
PUBLIC SESSION AGENDA
1. CALL TO ORDER
2. PLEDGE OF ALLEGIANCE
3. APPROVAL OF 1VIINUTES
4. WORKSHOP ON FINANCIAL DISCLOSURE APPEALS
5. CONSIDERATION OF FINAL ACTION - DOAH RECOMAUNDED
ORDER
A. Complaint No. 99-040
In re MORRIS M. SCIONTI (TAMPA)
Atty. Julie A. Reynolds (R)
Marcia G. Cooke (C)
6. CONSIDERATION OF FINAL ACTION — STIPULATION
A. Complaint No. 00-266
In re MARY CONROY (HOLLYWOOD)
Perla I. Medina-Kinne
B. Complaint No. 01-092
In re MARY ARRINGTON (KISSEMWE)
Atty. Mark Herron (R)
Richard O. Herring (C)
C. Complaint No. 02-008
In re DAVID MIZE (BRADENTON)
(Party materially related)
D. Complaint No. 02-023
In re CECIL HOWARD (TALLAHASSEE)
Eugene Danaher (C)
PUBLIC AGENDA PAGE 2 JUNE 6, 2002
7. CONSIDERATION OF PETITION FOR COSTS & ATTORNEY'S FEES
A. Complaint No. 01-185
In re ANTHONY M. GRIPPA (TALLAHASSEE)
Atty. Richard E. Coates (R)
Eugene Danaher (C)
8. CONSIDERATION OF -ADVISORY OPINIONS '
File No. 2317. POST -EMPLOYMENT RESTRICTIONS: FORMER
AGENCY FOR HEALTH CARE ADMINISTRATION ATTORNEY
REPRESENTING CLIENTS BEFORE AGENCY AND VARIOUS
DEPARTMENT OF HEALTH BOARDSPDO
File No. 2320. CONFLICT OF INTEREST; VOTING CONFLICT:
SCHOOL BOARD MEMBER EMPLOYEE OF INVESTMENT BANKING
FIRM MARKETING SCHOOL DISTRICT BONDSccA
File No. '2323.: CONFLICT OF INTEREST: CITY OFFICIALS USING
CITY BUSINESS CARDS IN PRIVATE AFFAIRSccA
9. CONSIDERATION OF APPROVAL OF CONTRACT EXTENSION FOR
SPECIAL COMIYIISSION ADVOCATE
10. CONSIDERATION OF PURCHASE OF REPLACEMENT SOFTWARE
11. CONSIDERATION OF HOLDING COM[ IISSION MEETINGS OUTSIDE
TALLAHASSEE
12. REPORTS
A. CHAIRMAN
B. EXECUTIVE DIRECTOR
C. LEGISLATIVE CHAIR
13. ADJOURNMENT
PUBLIC AGENDA PA rR I
....," J UNE 6,20(
NOTE
If a person decides to appeal any decision made by the Commission with respect to any matter considered at the meeting, he or she will need a record of the proceedings. For such purpose, he or she may need to ensure that a verbatim record of the
proceedings is made, which record includes the testimony and evidences upon which
the appeal is to be based.
"ATTENTION"
COPIES OF DOCUMENTS MUST BE REQUESTED PRIOR TO THE
COMMISSION MEETING, AS COPIES WILL NOT BE AVAILABLE FOR
DISTRIBUTION ON THE DAY OF THE MEETING.
In accordance with the American Disabilities Act, 'persons with disabilities or
handicaps who need assistance or reasonable accommodation should contact the
Commission on Ethics, P.O. Drawer 15709, Tallahassee, FL 32317-5709, telephone
850/488-7864. If you are hearing or speech impaired, please contact the Commission
by using the Florida Relay Service which can be reached at 1-800-955-8771 (TDD).
12