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HomeMy WebLinkAbout2002 04 08 Regular L City Business Cards COMMISSION AGENDA ADD-ON ITEM L Consent Informational Public Hearing Regular X April 8. 2002 Meeting ~/flIN;] '1ly/v~ Mgr. / Att. / Dept. REQUEST: The City Attorney requests that the City Commission decide whether or not to request a formal ethics opinion from the Florida Commission on Ethics regarding the use of City business cards. PURPOSE: The purpose of this item is to determine whether or not the City Commission desires to formally propose an ethics question to the Florida Commission on Ethics regarding a Public Officer's use of a City business card. APPLICABLE LAW AND PUBLIC POLICY: 1. Sections 112.311 - 112.326, Florida Statutes (Code of Ethics for Public Officers and Employees). 2. Section 112.322(3), Florida Statutes, provides: (a) Every public officer. . ., when in doubt about the applicability and interpretation of [the Code of Ethics] may submit in writing the facts of the situation to the Commission on Ethics with a request for an advisory opinion to establish the standard Page 1 of 3 of public duty . . . an advisory opinion shall be rendered by the Commission, and each such opinion shall be numbered, dated, and published without naming the person making the request, unless such person consents to the use of his or her name. (b) Such opinion, until amended or revoked, shall be binding on the conduct ofthe officer who sought the opinion . . . unless material facts were omitted or misstated in the request for the advisory opinion. CONSIDERATIONS: 1. On February 5, 2001, the City Attorney requested an informal ethics opinion from the staff. attorneys at the Commission on Ethics. 2. On or about February 12, 2001, the staff attorneys advised the City Attorney that "insufficient legal precedent" exists to render an informal opinion regarding the city business card issue. 3. At the request of the City Commission, the City Attorney provided the City Commission, on May 14, 2001, with five (5) alternative questions to the original question sent to the staff attorneys. Each City Commissioner was asked to select the question(s) that they would like to ask the Commission on Ethics. 4. The City Attorney has now heard from each City Commissioner and reports the following: (a) Deputy Mayor Gennell has selected Question #2: While engaged in the solicitation of customers for their personal business may a city commissioner/mayor insert a city business card in personal business correspondences for purposes of promoting themselves for personal profit or gain? (b) Commissioner Martinez has selected the original question and Question #5: During the course of handling their private business and personal affairs, may the city commissioners and/or the mayor occasionally provide, upon or without request, city business cards to individuals in person or with correspondence? Maya city commissioner/mayor distribute a city business card to a person if the city commissioner/mayor has reason to believe that the city business card was only given to influence that person's decision to engage in a private business transaction in which the city commissioner/mayor will personally gain or profit? (c) Commissioners Blake and McLeod were neither inclined to select a question nor request a formal opinion at this time. Page 2 of 3 (d) Commissioner Miller desires to consider the views of his fellow Commissioners before deciding. STAFF RECOMMENDATION: The City Attorney recommends that the City Commission provide further direction as to whether they would like to request a formal ethics opinion. If the City Commission desires a formal ethics opinion, the City Commission should agree on which question(s) should be submitted. ATTACHMENTS: 1. City Attorney's February 5, 2001, letter to the Staff Attorney at the Commission on Ethics (without enclosures). 2. City Attorney's February 27,2001, letter to the City Manager. 3. City Attorney's May 14, 2001, letter to the Mayor and City Commission. COMMISSION ACTION: F:\DOCSICity of Winter SpringslAgendalAgenda.L.AddOn.Bus.Card4-04-02.wpd Page 3 of 3 ATTACHMENT NO.1 ) , ., BROWN, WARD, SALZMAN & WEISS, P.A. ATTORNEYS AT LAW Usher L Brown · John H. Ward · Gary S. saizmano Jeffrey S. Weiss Suzanne D' Agresta Anthony A. Garganeseo ScOtt D. Danahy James G. Vickaryous Allison Carmine McDonald Alfred Truesdell . Arthur R "Randy" Brown,. Jr. Brett A. Marlowe Jeffrey P. Buak -:' III North Orange Ave., Suite 875 Post Office Box 2873 . . Orlando, FL 32802-2873 (407) 425-9566 (407) 425-9596 FAX Emai1: firm@orlandolaw.net Web~ite: www.orlandolaw.net agarganese@orlandolaw,net · Board Certified Civil Trial Lawyer o Board Certified Business Litigation Lawyer a Board Certified City. County & Loca1 Government Law February 5,2001 Via Facsimile - 850488 3077 Via u.s. Mail Chris Anderson, Esq. Commission on Ethics State of Florida 2822 Remington Green Circle - Suite 1 PO Drawer 157 -. Tallahassee, FL 32317-5709 Dear Mr. Anderson: The undersigned represents the City of Winter Springs as City Attorney. On behalf of the City Commission of Winter Springs, I am requesting an inibrmal opinion regarding the issue set forth and explained below. FACTS At the City's nominal expeiise, the City provides each . City Commissioner and the Mayor with city business cards. The city business. cards are ordinary and simple, and similar to the typical" business cards carried daily by millions of people. In this case, the city business cards contain general information ~garding the City, inclucfulg a cop.y of the City seal and the City's name, address and telephone and fax numbers. In addition, the city business cards are personalized for each Commissioner and the Mayor by including the!! respective ~e, city title and e-mail address. The . "_-1.. """._~.-..."":':;.2.:-~-;. - (;t~ , . Chris Anderson, Esq. Commission on Ethics State of Florida February 5,.2001 Page 2 Commissioners and the Mayor regularly carry the city busmess cards on their person and they distribute them in many situations to identify themselves and to provide contact information. THE BUSINESS CARD 'J1le business card, as is true in every area where business cards are used, serves to. identify the name and status of the person presenting.the card. The business card'also has the desired effect of being a convenient means of introduction and eliminating confusion in identifying and communicating with individuals. For the most part, the use of business cards is a matter of personal taste and local custom. But, one could reasonably argue that there is an implied notion in our society that a business card is part of an individual's persona and that there is an expectation that it will be used in a variety of personal and business situations. Moreover, there is an expectation that elected' officials will use their business cards as an efficient and cost-effective means of introducing themselves to constituents, community leaders, developers, .and others in a variety of sitUations to promote the community that has elected them to public office. THE CITY COMMISSION'S INQUIRY In this context, members of the city commissiOn: and the Mayor predomimmtly use city business cards for identification purposes while performing official duties and attending government related functions. On occasion, however, the Commissioners and the Mayor would like t6 use the city business cards as a means of introducing and identifying themselves when engaged in other affairs, including personal aff~s. For example, in the course of conducting their private business affairs, a Commissioner and/or the Mayor may also identify an opportunity to promote the City. During the course of this dual private/public situation, a city: business card may be presented, in person or correspondence, to an individual for identification and information purposes and as a gesture of good will. Therefore, the issue presented is: -- During the course of handling their private buSiness and personal affairs', may the City. Commissioners and/or the Mayor occasionally provide, upon or without request, city business cards to individu3ls in person or with correspondence? LEGAL At'fALYSIS In summary, my legal research revealed no legal authority or opinion of the Commission on Ethics expressly limiting the use of city business cards. However, a previous opinion of the Commission on Ethics stated it was proper for a state representative to enclose a business card in .' .-, ( \ ( Chris Anders6~ Esq. Commission on Ethics State of Florida February 5,2001 Page 3 correspondence to constituents. But unlike the issue presented here, the representative printed the cards at"his own expense. Further, there is a line oflegal authority restricting the use of government stationery when such use has no public purpose, which, at first blush, seems somewhat related to the issue presented. Notwithstariding, it is my view the opinions regarding stationery should not be . broadly construed .to apply to the use of business cards because the personal nature of using a business card is clearly distinguishable from the nature.ofusing government stationery, which is clearly intended to manifest an official act Furthermore, from a public policy perspective, the imposition of significant restrictions on the USe of.city business cards could lead to confusion and absurd legal results which the Florida Code of Ethics is not intended to cause. Accordingly, as" explained below, it is my opinion that during the course of handling their private busines~ and personal affairs, it would not be per se improper for a City Commissioner and/or the Mayor to distribute, . upon or without request, a city business. card to an individual in person or with correspondence. Section 112.313(6), FIOljda Statutes, appears to be the provision of the Code of Ethics most applicable to the City Commission's inquiry. It provides: 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 perfQn;D. ~his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with Section 104.31. The term "corruptly" is defined as follows: "Corruptly" means done with 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. The Commission on Ethics has opined that Section 112.313(6) prohibits public officials. from using their official positions to.secure special privileges or benefits forthemselves'ot another, where the official's actions are taken with wrongful intent to obtain said privilege or benefit and are inconsistent with the proper performance of the official's public duties. See CEO, 99-8. With respect to the use of government stationery, the Commission of Ethics took a rather expansive approach to interpreting Section. I 12.313(6), Florida Statutes: .' ..- ( " r Chris Anderson, Esq. Commission on Ethics State of Florida February 5, 2001 Page 4 - Weare 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 stationeI')' 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 re~ipient of the letter is informed of the " Council member's public position. 1ms may be appropriate in the political contexts noted above, or it may be inappropriate,Jor example, if "the letter were being sent to settle a strictly private dispute with a debtor or creditor. CEO, 91-38. Further, the Fourth District Court of Appeal affirmed the Commission of Ethics , conclusion that a city commissioner violated Section 112.313(6), Florida Statutes when the commissioner used city stationery to promote a symposium for which he received compensation. See Gordon v. State of Florida, 60.9 So. 2d 125 (pIa 4th DCA 1992). However, it is significant to note that this case consisted of egregious facts; the commissioner was using the stationery on behalfofNova Umversity for whom he was doing consulting w()rk. See In re James K. Gordon, Commission on Ethics Final Order and Public Report Upon Mandate of the District Court of Appeal (March 11, 1993). In other words, the commissioner was using city stationery to ben~nt a private entity that was employing him for compensation. Other opinions of the Commission on Ethics provide some guidance on an elected official's ability to distribute information with his or her name on it. In CEO 77-175, the Commission on Ethics opined that it would not be a violation of Section 112.313(6) if a state senator distributed a brochure entitled "The Florida Senate" with his name stamped inside to school and civic groups upon their request. Further, in CEO 77-45, the Commission on Ethics also opined that a member of the Florida House of Representatives could enclose a business card (paid for at his expense) containing his picture, name, public office, political party, S!!ite district, and telephone number in correspondence to his constituents. - Inherent in the many duties of all elected officials: is the duty to meet and comi;nunicate with the official's constituents in a variety of personal, business, and government environments and situations. As individuals elected by the community to public office, these individuals carry with them their public title and persona in all of these environments and situations. As such, the distribution of city business cards by elected officials in any of these environments or situations is consistent with the official's proper performance of his or her official duties because the business cards serve as a means of identifying the name and. status of the elected official, regardless of whomever the card is presented to or wherever it is presented. Therefore, the distribution of city business cards in non-governmental environments or situations, in my opinion, is not a per se corrupt use of the official 's position or of government property or resources under Section 112.313(6), (- \ .(~ Chris Anderson, Esq. Commission on Ethics State of Florida February 5,2001 Page 5 Florida Statutes, even i(the business cards were obtained by the elected official at city expense. CEO 77-45 is consistent with this conclusion. Furthermore, business cards are very personal in nature in that they are not transferable from one person to another for use. unless the persons share the same. name, offi~ia1 title, and other information that is printed on the card. That, obviously, is an extremely unlikely event. Thus, city . business cards, like any business cards, are personal to the indiVidual for whom the card is printed, regardlesS of whether the elected official pays for the business cards himself or herself, or whether city funds are expended to pay for the cards. Since business cards are personal in nature, they differ greatly from business or government stationery. Business or government stationery is used to convey an official message or position of the particular business or governmental entity. Business cards, on the other hand, do not ordinarily convey any message or position; rather, business cards m,erely contain identifying information about a particular individual who represents the particular entity in some capacity. Therefore, the legal authority regarding the use of government stationery is inapplicable to the issue of the propriety of _ . distributing city business cards and should not be considered. It is possible to conjure up a scenario in which the distribution of a city business card, coupled with some other act or omis.sion on the part of ~e ~l~cted official distributing the business card, may be corrupt under Section 112.313 (6), Florida Statutes, and therefore subj ect to analysis under the Florida Ethics Code. It is my opinion, however, that the Code would be trivialized and inappropriately applied if such analysis were automatically required in order to address the simple act of distributing a city bUsiness card for purposes of introduction, identification, and information in non-governmental. environments or situations. It seems a great disservice would be done if elected city officials were put in a position of being afraid to reveal their identities and the fact that they are elected city officials simply because the. situation in which they are involved is not entirely government related. It seems, rather, that elected city officials should have the discretion to determine when opportunities to promote the city present themselves, regardless of whether the environment in which such opportUnities arise is private or public in nature. Your guidance and opinion regarding this issue "Yill be greatly appreciated. AAG:kj F:\DOCS\City ofWinler SpringslGeneraJ\Ethics\busincss C3J'ds.kj ATTACHMENT NO.3 .l. t '," (~ C. -:, BROWN, WARD, SALZMAN & WEISS, P.A. ATTORNEYS A.T LAW Usher L. Brown · Jol),n H.. Ward · GarY 's. Salzmano Jeffrey S. Weiss Suzanne D' Agresta Anthony A, GarganeseD Scott D. Danahy James G. Vickaryous Allison Carmine McDonald Alfred Truesdell Arthur R. "Randy" Brown, Jr. Brett A. Marlowe Jeffrey P. Buak Kristine R. Kutz 111 North Orange Ave., Suite 875 Post Office Box 2873 Orlando, FL 32802-2873 (407) 425-9566 (407) 425-9596 FAX Website: www.orlando1aw.net e-mail:agarganese@orlandolaw.net · Board Certified Civil Trial Lawyer o Board Certified Business Litigation Lawyer o Board Certified City, County & Local Government Law February 27,2001 Mr. Ronald McLemore, City Manager City of Winter Springs 1126 East S, R. 434 Winter Springs, FL 32708 Re: Business Card Issue Dear Ron: In your absence at the February 12, 2001 City Commission meeting, I advised the City Commission that the staff attorneys of the Commission on Ethics were unable to render an informal opinion regarding the appropriate use of City business cards. The staff attorney~. fel_~ there is insufficient legal precedent in which to render an informal opinion. Therefo~e, in orderJor the City Commission to receive an 'ethics opinion regarding this issue, the City Commission will have to request a formal opinion from the Commission on Ethics. A formal opinion requires that the issue be presented to' the full Commission on Ethics, who will conduct an appropriate public hearing before issuing a formal written opinion, .The City Commission has asked that this item be placed on an upcoming City Commission agenda so that they can determine whether they want to request a formal opinion. I . , ' ~ \ ,~-.. ( " r-- Mr. Ronald McLemore, City Manager City of Winter Springs February 27,2001 Page 2 Enclosed for the City Commission's' consideration is the February 5, 2001 letter that I prepared for purposes of requesting an informal opinion. I have also included with that letter a copy of a previous ethics complaint that was filed In re John Reed Buckley which was provided by the staff attorneys. In addition, I have enclosed a copy of the Commission on Ethics opinions 77-175, 75-45, and 91-38 and Gordon v. State of Florida Commission on Ethics, 609 So.2d 125 (Fla. App.' 4 Dist. 1992), which were also cited in my February 5 letter, In re John Reed Buckley it was alleged in an ethics.complaint that Mr. Buckley was misusing his position on ti.e Airport Authority by using his Authority business cards, which were paid for with public funds, to promote the candidacy of persons seeking seats on the Authority, Mr. 'Buckley apparently wrote the names. of preferred candidates on the cards and handed them out at gatherings. The Commission on Ethics found that the allegations in the complaint were insufficient to support a. fmding that Mr. Buckley misused his public position in violation of S 112.313(6), Florida Statutes. The Commission on Ethics noted that the complaint contained insufficient facts to indicate that Mr. Buckley violated S 112.313(6), Florida Statute~. The Commission on Ethics also specifically noted that the complaint contained no allegations demonstrating how Mr. Buckley's conduct would be considered "corrupt" for purposes of the Code of Ethics. As such, the dismissal of the complaint made against Mr. Buckley may have been more pecause of an inadequately drafted complaint and insufficient allegations, rather than Mr. Buckley not violating S 112,313(6), Florida Statutes. I would, therefore, caution the Commission from reading ,too much into the dismissal of the complaint against Mr. Buckley. Furthermore, as I indicated at the February 12th City Commission meeting, whenever the misuse of a public position is considered under S 112.313(6), Florida Statutes, a violation of that section only occurs when it can be demonstrated that the public official acted "corruptly'~. Corruptly has been defmed to mean something done with a wrongful intent and for the purpose of obtaining 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. Because there is an issue of intent in proving a violationofs 112,313(6), Florida Statutes, the Commission on Ethics has been reluctant in the past to issue opinions regarding misuse of public position because no final conclusion can be drawn whether a violation exists under this provision without a determination of intent which can only be made through an investigation and hearing. As such, an advisory opinion from the Commission on Ethics on this issue may be of little assistance in addressing. the issue that I presented to the Commission on Ethics in my February 5, 2001 letter. If the City Commission desires an opinion from the Commission on Ethics, we need to advise the Commission on Ethics staff so that the issue presented by the City Commission can be submitted , to the Commission on Ethics sometime in the very near future. The Commission on Ethics meets once a month and their agenda is set approximately several weeks in advance, so there can be a 60 ~ ~ (' c Mr. Ronald McLemore, City Manager City of Winter Springs February 27;2001 Page 3 to 90-day time period between the date that the City requests an ethics opinion and the date that an opinion is actually rendered. item. I will be happy to answer any questions when the City Commission considers this agenda Anthony A. Gar~ City Attorney AAG:kj Enclosures F:\DOCS\City ofWinler Springs\General\Ethics\McLemoreOO I.kj ATTACHMENT NO.2 t--' c. BROWN, WARD, SALZMAN & WEISS, P.A. ATTORNEYS AT LAW Usher L. Brown · John H. Ward · Gary S. Salzmano Jeffrey S. Weiss Suzanne D' Agresta Anthony A. GarganeseO Scott D. Danahy James G. Vickaryous Allison Carmine McDonald Alfred Truesdell Arthur R. "Raridy" Brown, Jr., Brett A. Marlowe Jeffrey P. Buak Kristine R. Kutz III North Orange Ave., Suite 875 Post Office Box 2873 Orlando, FL 32802-2873 (407) 425-9566 (407) 425-9596 FAX Website: www.orlandolaw.net e-mail:agarganese@orlandolaw.net Cocoa, FL: (866) 425-9566 · Board Certified Civil Trial Lawyer o Board Certified Business Litigation Lawyer o Board Certified City, County & Local Government Law May 14,2001 The Honorable Paul Partyka and Members of the City Commission City of Winter Springs 1126 East S. R. 434 Winter Springs, FL 32708 Re: Use of City Business Cards Dear Mayor Partyka and Members of the City Commission: As you recall, the City Commission directed that I prepare several draft questions for you to consider regarding the City Commission's desire to request a formal ethics opinion on the use of City business cards. The original question which I originally proposed was considered a question too general in nature. The following for your consideration is the original question and several alternatives: Original: During the course of handling their private business and personal affairs, may the City Commissioners and/or the Mayor occasionally provide, upon or without request, City business cards to individuals in person or with correspondence? Alterriatives: 1. During the course of handling a business transaction with a person, for private profit or gain, may a city commissioner/mayor provide a city business ~ > ( ". \ c~ The Honorable Paul Partyka and Members of the City Commission City of Winter Springs May 14,2001 Page 2 card to that person, with correspondence or in person, if the person is likely to be seeking approval of a city permit from the city commission? 2. While engaged in the solicitation of customers for their personal business may a city commissioner/mayor insert a city business card in personal business correspondences for purposes of promoting themselves for personal profit or gain? 3. Maya city commissioner/mayor distribute a city business card to a person for 'purp~ses of promoting themselves for personal profit or gain? 4. During the course of handling a private business transaction with a person, may the city commissioner/mayor distribute a city business card to that person if the city commissioner/mayor only stands to personally profit or gain from the transaction and the transaction is completely unrelated to city business? 5. Maya city commissioner/mayor distribute a city business card to a person if the city commissioner/mayor has reason to believe that the city business card was only given to influence that person's decision to engage in a private business transaction in which the city commissioner/mayor will personally gain or profit? Please review and provide me with your comments at your earliest convenience so that I can fine tune one or more draft questions to be submitted to the Commission on Ethics. Upon completion of the draft question(s), this matter will be placed on the City Commission's Agenda for final approval. Anthony A. Garganese City Attorney AAG:kj F:\DOCS\City of Winter Springs\Ethics\Business Card Questions.kj I