MISUSE OF POSITION

LETTER OF RECOMMENDATION WRITTEN ON OFFICIAL STATIONERY
OR ON PERSONAL STATIONERY WHICH IDENTIFIES
CIRCUIT COURT CLERK'S OFFICIAL POSITION

To: JoAnne Holman, St. Lucie County Clerk of Circuit Court (Fort Pierce)

SUMMARY:

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 or of any agencies that it deals with, using stationery purchased with her own personal funds that identifies the writer as the Circuit Court Clerk, would not violate any provision of the Code of Ethics for Public Officers and Employees, so long as there is no quid pro quo of value to the Clerk in exchange for her recommendation, such as a campaign contribution, and there is no other benefit to the Clerk other than the incidental political benefit of gaining the goodwill of the constituent. Providing such a letter of recommendation using official stationery and public resources would not violate any provision of the Code of Ethics for Public Officers and Employees so long as there is no quid pro quo of value to the Clerk in exchange for her recommendation, such as a campaign contribution, where there will be no other benefit to the Clerk other than the incidental political benefit of gaining the goodwill of the constituent, and where there is no other rule, regulation, or policy prohibiting the use of the resources of the office for such purposes.

QUESTION 1:

Does the Code of Ethics for Public Officers and Employees prohibit you, a Circuit Court Clerk, from writing 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 or of any agencies that it deals with, using stationery purchased and mailed using your own personal funds but which identifies your official position?

Under the circumstances described below, this question is answered in the negative.

In your letter of inquiry you advise that you have lived in St. Lucie County all of your life and have been employed by the Office of the Clerk of the Circuit Court since 1972. You advise further that you have been the Clerk of the Court since 1993.

Many times, you write, you are asked to write letters in support of young people receiving grants, in support of applications for employment, or recommending someone to serve on a board, matters which in no way relate to the Clerk's office or any agencies with which you deal. In the past, you advise, you have written and mailed such letters on plain stationery and in plain envelopes. However, because you are the Clerk of the Circuit Court 24 hours a day, whether or not you actually are working in your office, you believe that you should be able to write these letters on stationery which identifies you as the Clerk of the Circuit Court, but which you have purchased with your own personal funds.

Along with your letter, you provided a sample of the stationery that you propose using. Rather than containing a facsimile of your Clerk's Office's seal, as your official stationery does, it has pictured together at the top of the stationery on the left side the scales of justice, a gavel, and a book, and at the top on the right side is your name and St. Lucie County Clerk of Circuit Court.

The Code of Ethics does not contain any provision that expressly addresses the use of one's public position to provide recommendations for others. Section 112.313(6), Florida Statutes, is the provision of the Code of Ethics most applicable to your inquiry. It provides as follows:

MISUSE OF PUBLIC POSITION.—No public officer or employee of an agency 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.

For purposes of this provision, the term 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 or her public duties. [Section 112.312(9), Florida Statutes.]

This provision prohibits you from using or attempting to use your official position, as Clerk of the Circuit Court, or any resources which may be within your trust to secure a special privilege or benefit for yourself or another, where your actions are taken with wrongful intent for the purpose of obtaining a benefit for yourself or another and are inconsistent with the proper performance of your public duties.

In addition, Section 112.313(2), Florida Statutes, provides:

SOLICITATION OR ACCEPTANCE OF GIFTS. No public officer, employee of an agency, local government attorney, 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, local government attorney, or candidate would be influenced thereby.

In essence, this provision prohibits you from taking any action in your official capacity if it is in exchange for anything of value to you.

In CEO 91-38, we found that the use of stationery similar to a city's official stationery for campaign, fund-raising, and personal purposes, even when the stationery was not paid for with city funds, would constitute a corrupt misuse of official position in violation of Section 112.313(6) to the same extent as the use of plain stationery in a letter that refers to a council member's public position would. We noted that use of the city seal, the public official's official title, and the name of the city, even on stationery not paid for with city funds, constitutes a use of public position that may be violative of Section 112.313(6), when such use has no public purpose. We wrote:

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 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 that opinion, we also referenced In re Ilene Liebermann, Complaint No. 90-71, in which we found no probable cause to believe that Ms. Liebermann had corruptly misused her official position by using stationery bearing, among other things, the seal of the city, her title, and her name, for writing city electors and recommending to them particular candidates. In addition, we referenced In re John Curlee, Complaint No. 89-45, in which we found that a highway patrolman's wearing of his uniform while appearing in a television commercial for a Florida Senate candidate did not violate Section 112.313(6). There, we accepted the argument that the highway patrolman's uniform was part of his persona and its use was protected as constitutional free expression. Consequently, we concluded that where a member of a city council used stationery bearing a reproduction of the seal of her city, her title, the name of her city, the address and telephone number of city hall, and a statement that the stationery was not paid for with city funds for campaign purposes, fund-raising purposes, and personal letters--purposes not directly related to city business--such use was not automatically prohibited by the Code of Ethics.

Although the use of official stationery was not at issue in In re George Keller, Complaint No. 97-169, the use of one's public position was involved. There, we accepted the argument that the official's actions were consistent with the A time honored custom of public officials writing letters of recommendation in response to a constituent's request for himself or herself and found that there was no probable cause to believe that Mr. Keller, a city council member, had violated Section 112.313(6) by identifying himself as a member of the City Council while testifying as a character witness on behalf of a constituent whom he knew only because she had contacted him to complain about her treatment by a particular police officer.

Where personal stationery is used and no public resources are expended in making the recommendation, your 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 or of any agencies that it deals with is no different from agreeing to be listed as a character reference. The person reviewing the application will learn, or already know, of your public position and will be given a favorable recommendation of the applicant. Such an action, although it involves the use of public position, would not be inconsistent with the proper performance of public duties or made with wrongful intent. This assumes, of course, that there is no quid pro quo of value to you in exchange for your recommendation, such as a campaign contribution, and that there will be no other benefit to you other than the incidental political benefit of gaining the goodwill of the constituent.

Accordingly, under the circumstances described above we find that your 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 or of any agencies that it deals with, using stationery purchased with your own personal funds that identifies you as the Circuit Court Clerk, would not violate any provision of the Code of Ethics for Public Officers and Employees.

QUESTION 2:

Does the Code of Ethics for Public Officers and Employees prohibit you, a Circuit Court Clerk, from writing 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 or of any agencies that it deals with, using official stationery and resources of your office?

Under the circumstances described below, this question also is answered in the negative.

As noted above, the Code of Ethics does not contain any provision that directly addresses the use of one's public position to provide a favorable reference for someone. In the absence of some quid pro quo for that official act, the only provision in the Code that would address such actions is the provision that prohibits the corrupt misuse of public position to benefit oneself or another.

In In re Thomas R. Mariani, Complaint No. 96-238, we concluded that there was no probable cause to believe that Section 112.313(6) had been violated where a city mayor had written letters of recommendation on city stationery which were processed, copied, and mailed at taxpayer expense. There, it was alleged that, notwithstanding a resolution or policy of the city that official stationery not be used for expressions of personal opinions on matters not involving city business, the mayor repeatedly used city stationery to write letters of recommendation for personal friends who had never worked for the city. He also allegedly wrote a letter supporting a church's purchase of some property to the Resolution Trust Corporation on behalf of a local minister whose church had supported him. After investigation, we determined, as we did in the Lieberman case, that, although the act of identifying oneself as an officeholder is a use of office, such use of office for the purpose of making recommendations does not violate Section 112.313(6). Next, we found that, because there can only be a violation of Section 112.313(6) where the use of one's public office or the resources thereof is inconsistent with the proper performance of one's public duties and undertaken with wrongful intent and because elected and appointed officials are often called upon to write letters of recommendation or recognition as part of their constituent work, responding to such requests may be said to be a part of a public officer's public duties, not violative of Section 112.313(6) where there is no showing of wrongful intent on the part of the public official to improperly benefit the public official or another. It further appeared from the investigation that the city's policy did not expressly prohibit the use of city resources for such letters of recommendation. We also noted that in In re: Anthony Mosca, Complaint No. 94-56, we had found no probable cause to believe that a violation had occurred where a county commissioner had used county resources to write a character reference letter on behalf of an acquaintance being sentenced on DUI charges.

Based on our precedent, we are of the opinion that where public stationery and resources are used in making the recommendation, your 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 or of any agencies that it deals with would not be inconsistent with the proper performance of public duties or done with wrongful intent, and therefore would not constitute a corrupt use of official position to benefit yourself or the applicant, where there is no quid pro quo of value to you in exchange for your recommendation, such as a campaign contribution, where there will be no other benefit to you other than the incidental political benefit of gaining the goodwill of the constituent, and where there is no other rule, regulation, or policy prohibiting the use of the resources of your office for such purposes.

Accordingly, under the circumstances described above we find that your 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 or of any agencies that it deals with, using official stationery and public resources, would not violate any provision of the Code of Ethics for Public Officers and Employees.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 3, 1999 and RENDERED this 8th day of June, 1999.

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Charles A. Stampelos, Chair