CEO 84-116 -- November 29, 1984

CONFLICT OF INTEREST; VOTING CONFLICT

CITY COMMISSIONER SOLICITING FUNDS AND USING CITY RESOURCES IN DEFENSE OF LAWSUIT

To: Mr. George Halloran, City Commissioner, City of Key West

SUMMARY:

A city commissioner may solicit funds for the defense of a lawsuit brought against him for his stance concerning a local development so long as there is no understanding that his official action would be influenced by a contribution and so long as he does not and should not know that it is being given to influence some official action in which he is expected to participate. CEO 83-15 is referenced. A city commissioner may use city telephones to speak with out-of-town attorneys and use city stationery to write letters to attorneys, witnesses, and persons involved in fund-raising events, in the defense of a lawsuit against him in his capacity as a public official or for matters arising out of the performance of his public duties. However, a public official would misuse his position in violation of Section 112.313(6), Florida Statutes, if he were to use city resources in the defense of a lawsuit involving only a private matter. Section 112.3143, Florida Statutes, as amended by Chapter 84-357, Laws of Florida, would require a city commissioner to abstain from voting on issues concerning reimbursement by the city of legal fees incurred by him in the defense of a lawsuit.

QUESTION 1:

Would a prohibited conflict of interest be created were you, a City Commissioner, to solicit funds for your defense of a lawsuit brought against you for your stance concerning a local development?

In your letter of inquiry and in a telephone conversation with our staff, you have advised that you are a member of the Key West City Commission and that a lawsuit has been brought against you for your stance concerning a local development. You also advise that the five-count lawsuit basically alleges that you and the other defendants, a neighborhood association, the attorney for the association, and a neighboring property owner, have attempted to ruin the developer financially by unreasonably delaying the developer's project. Although you are not sued in your official capacity as the City Commissioner, you advise that the suit is based upon some actions you have taken as a City Commissioner, as well as other actions which took place before your election in November, 1983. You question whether you may publicly solicit contributions for your defense of the lawsuit.

In a previous opinion, CEO 83-15, we considered the conditions under which a State Representative could solicit or accept financial gifts in order to pay for printing and mailing informational material to constituents of the Representative's district. We also advised in that opinion that gifts of this type in excess of $25 should be disclosed on Commission on Ethics Form 7, Gift Disclosure for Elected Officers.

In accordance with the rationale of that opinion, we find that you may publicly solicit funds for your defense of the lawsuit so long as your solicitation or acceptance of a particular contribution is not based upon any understanding that your official action would be influenced, and so long as you do not know, and with the exercise of reasonable care should not know, that it is being given to influence some official action in which you are expected to participate.

QUESTION 2:

Would the Code of Ethics for Public Officers and Employees prohibit you from using City telephones to speak with out-of-town attorneys and from using City stationery to write letters to attorneys, witnesses, and persons involved in fund-raising events, in the defense of the lawsuit?

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

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 (1983).]

For purposes of the prohibition, 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(7), Florida Statutes (1983).]

This provision prohibits a public officer from corruptly using or attempting to use any property or resource which may be within his trust to secure a special privilege or benefit for himself.

We are of the opinion that the use of public resources in the defense of a strictly private lawsuit would constitute a misuse of public position in violation of this statute. On the other hand, we feel that it would be appropriate for a public official to utilize public resources in the defense of a lawsuit when he is sued in his capacity as a public official or when he is sued individually for matters arising out of the performance of his public duties.

In our view, it is not clear that the lawsuit against you arises out of the performance of your public duties or that the lawsuit is strictly a private matter. However, the decision we must make is not simply whether the lawsuit concerns your public duties as opposed to strictly private interests, but instead is whether the use of City telephones and stationery in connection with the defense of the lawsuit would constitute a corrupt misuse of your official position.

As we are unable to reach a conclusion on the public versus private nature of the lawsuit, we are of the opinion that you would not be acting "corruptly" if you were to use City telephones and stationery in the manner proposed. Should the court conclude that the suit concerns only your private actions and interests and does not arise from the performance of your public duties, we would consider you to be on notice that the use of City resources in connection with the suit would be inappropriate. From that time on we would consider the continued use of City resources to constitute a violation of Section 112.313(6).

Accordingly, we find that the Code of Ethics would not prohibit you from using City telephones to speak with out-of-town attorneys or from using City stationery to write letters to attorneys, witnesses, and persons involved in fund-raising, in connection with your defense of the lawsuit, unless and until there has been a determination by a Court of competent jurisdiction that the lawsuit does not arise out of the performance of your public duties.

QUESTION 3:

Are you required to abstain from voting as a City Commissioner on issues concerning reimbursement by the City of legal fees incurred by you in the defense of the lawsuit?

This question is answered in the affirmative.

Section 112.3143, Florida Statutes, as amended by Chapter 84-357, Laws of Florida, provides that no municipal public officer shall vote in his official capacity upon any measure which inures to his special private gain. In these instances, the official is to publicly state the nature of his interest before a vote is taken and is to file a Memorandum of Voting Conflict (Commission on Ethics Form 4) within fifteen days after the vote occurs for inclusion in the minutes of the meeting.

We are of the opinion that the decision of whether to reimburse you for legal fees you have incurred in the defense of a lawsuit would inure to your special private gain. If the City does not reimburse you for the cost of legal fees, you will be required to pay for them personally. Therefore, you stand to gain or lose as a result of the outcome of the vote.

Accordingly, we find that you would be required to abstain from voting on issues concerning the reimbursement by the City for legal fees you have incurred in the defense of the lawsuit.