CEO 94-1 -- January 27, 1994
VOTING CONFLICT OF INTEREST
CITY COMMISSION VOTING TO PAY FOR PUBLICATION
OF MAYOR'S BOOK WHICH ALSO CONTAINS THE
To: (Name withheld at the person's request.)
No final conclusion can be drawn in an advisory opinion as to whether a mayor and city commissioners have misused their positions in violation of Section 112.313(6), Florida Statutes, by, respectively, assigning all rights and interest in a book written by the mayor to the city and voting to publish the book in a version which also contains the commissioners' photographs, because a determination of intent must be made and this requires an examination or investigation of all relevant circumstances. No conclusion is reached from the circumstances presented as to whether the expenditure of city funds for the book's publication serves a public purpose.
There is no indication that, by assigning all of his rights, title, revenue, and interest in his story, the mayor used his position or any resources within his trust or acted for the purpose of securing a benefit for himself or another.
Any gain or loss resulting to the commissioners from the sale and distribution of the book containing their photographs would be too speculative and remote to conclude that they would receive any "special" gain as a result of the city's paying for its publication. Therefore, the commissioners were not prohibited by Section 112.3143(3)(a), Florida Statutes, from voting to pay for its publication.
Would a prohibited conflict of interest be created were a city commission to support and agree to pay for the publication of a "literary work" (short story) written by the city's mayor, which publication also includes a brief history of the city commission and the city commissioners' photographs, where the mayor assigns all of his rights, royalties, revenues, and benefits to the city for a period of 10 years?
In your letter of inquiry, you advise that the City Commission voted on and passed a resolution authorizing and directing you and the City Manager to negotiate and enter into an agreement with a publisher for the publication of a short story written by the Mayor for school age children. The theme of the story, you write, is that it is better to complete school, perform honest work with no illegal short cuts, and assist others in need. You also advise that a "Success Test," consisting of ten multiple choice questions intended to reinforce the theme, appears at the end of the story. If the story is published as proposed, the Mayor's name will appear on the book as its author, and it will contain a brief history of the present City Commission and the members' pictures.
You advise that preliminary negotiations have occurred between the Mayor and the "subsidy book publisher" for the cost of publication of the story for $5,450.00. This is the maximum amount the City Commission agreed to pay for the publication at its October 13, 1993 meeting. The meeting minutes and the Commission's resolution indicate that the Mayor was not present at this meeting. The City Commission's minutes also reflect that the City Manager explained to the City Commissioners that the Mayor had offered the book sometime in the past and had proposed to you and the City Manager that he would assign all revenues from the book to the City if the City would publish the book. The story was copyrighted first in 1976, before the Mayor was elected to his present position. The reason stated in the City Commission's resolution for publishing the book is that the City Commission "desires to support the publication of a literary work."
In an assignment dated November 11, 1993, the Mayor assigned all of his rights, title, revenue, and interest in the publication, together with all "privileges, benefits, and advantages to be derived therefrom, including any and all sums of money due or owing to [him] and all claims, demands, and causes of action of whatsoever kind," to the City for a period of 10 years. He also authorized and empowered the City to execute a contract or agreement with the publisher for the publication of the short story and to receive "all profits, dividends, revenues, or surplus arising therefrom."
You advise that the $5,450.00 which will be paid by the City to the publisher covers the cost of the book's publication. You advise further that the retail price of the book will be $5.95 per copy. The publisher, you advise, has agreed to pay $2.38 per copy (40% of the retail price) to the City for every copy sold and payment received. However, adjustments will be made for discounted sales. You advise that the publisher has the discretion to determine the number of copies of the book to be published, and you are not aware of the number that will be published. You also advise that the sales promotion, distribution, advertising, and publicity is left to the publisher's election and discretion and will be done at no extra cost to the City. Any requests for additional publication or distribution will be authorized by the publisher and/or by the City Commission, you advise.
Finally, you advise that neither the Mayor nor any other member of the City Commission holds or owns any interest in the publisher and, to your knowledge, they have not entered into any other contracts with the publisher. You are concerned, however, that under these circumstances a conflict of interest under the Code of Ethics may exist.
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 8112.313(6), Florida Statutes.]
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.]
VOTING CONFLICTS.--No county, municipal, or other local public officer shall vote in his official capacity upon any measure which inures to his special private gain; which he knows would inure to the special private gain of any principal by whom he is retained or to the parent organization or subsidiary of a corporate principal by which he is retained, other than an agency as defined in s. 112.312(2); or which he knows would inure to the special private gain of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of his interest in the matter from which he is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Section 112.3143(3)(a), Florida Statutes.]
Section 112.313(6), Florida Statutes, prohibits the Commissioners and the Mayor from using their official positions or any resources which may be within their trust to secure a special privilege or benefit, where their actions are taken with wrongful intent for the purpose of obtaining a benefit for themselves or another and are inconsistent with the proper performance of their public duties. In previous opinions, we have observed that this statute requires a determination of intent which is extremely difficult to make while rendering an advisory opinion, since intent is to be determined from an examination of all relevant circumstances.
On the basis of evidence presented through investigation and hearing, we are able to make a determination of intent when a complaint has been filed concerning a given situation; however, in rendering an advisory opinion, we are hindered by a lack of access to information concerning all the circumstances of the situation as well as to information concerning the credibility of the individuals involved. See CEO 93-6, CEO 91-28, and CEO 82-82. Therefore, we are unable to make a final determination as to whether the Commissioners' voting to support and pay for the publication of the Mayor's story constitutes a violation of Section 112.313(6), Florida Statutes.
While it is arguable that even though the Mayor has assigned all of his rights to any and all monetary compensation that may be derived from the publication and sale of his story, he still may reap some benefit either professionally or politically from having his story published showing him as the author and containing his picture as a member of the City Commission. Likewise, it can be argued that if the Mayor's book is widely distributed, the City Commissioners also may benefit, at least politically, from a publication which contains a brief history of the present City Commission and which presumably will describe the current members of the Commission and which will include the Commissioners' pictures.
Section 10, Article VII, Florida Constitution, prohibits the expenditure of public funds for a private purpose. It is only when there is some clearly identified and concrete public purpose as the primary objective of the expenditure that a municipality may disburse, loan, or pledge public funds or property to a nongovernmental entity. See AGO 92-22, citing O'Neill v. Burns, 198 So. 2d 1 (Fla. 1967), and Orange County Industrial Development Authority v. State, 427 So. 2d 174 (Fla. 1983). The purpose of this constitutional prohibition is to protect public funds and resources from being exploited in assisting or promoting private ventures when the public would be at most only incidentally benefited. See AGO 92-31.
In AGO 79-14, the Attorney General, referring to O'Neill, supra, noted that the test for any expenditure of public funds by a municipality or other governmental entity in this State is whether the expenditure is for a purpose which primarily benefits the public, with any benefits to private interests being only incidental and secondary. Although a court ultimately could decide whether an expenditure of public funds was for a public purpose through its resolution of a taxpayer's lawsuit [See, for example, Housing Authority of Melbourne v. Richardson, 196 So. 2d 489 (Fla. 4th DCA 1967)], the governing body of the municipality initially makes that determination.
If an expenditure authorized by a public official does not satisfy the public purpose test, the official's approval of the expenditure would be inconsistent with the proper performance of his or her public duties. Conversely, if we are unable to conclude that the expenditure was not for a public purpose, then the official's action could not be said to have been inconsistent with the proper performance of his or her public duties--and would not constitute a corrupt misuse of official position--even though the expenditure may be considered to be unnecessary or wasteful by some persons.
Under the circumstances presented, we are unable to conclude either that the expenditure clearly lacks a public purpose or that no public purpose would be served by the City's expenditure to publish the book. On the one hand, we have not found any precedent concluding that there is a valid public purpose served in simply supporting the publication of a literary work. On the other hand, we are aware that numerous agencies of government issue many different kinds of publications, some of which, such as anti-drug literature, are aimed at enhancing community values and reducing societal problems.
Additionally, we find under the circumstances presented that there is no indication that by assigning all of his rights, title, revenue, and interest in the story to the City for a period of 10 years the Mayor used his position or any resource within his trust or that he acted for the purpose of securing a benefit for himself or another. There also is no indication that he used his position to obtain the support of the other Commissioners for publication of his story. Accordingly, we find that the Mayor also does not appear to have violated Section 112.313(6), Florida Statutes.
Section 112.3143(3)(a), Florida Statutes, prohibits the Commissioners and the Mayor from voting on a measure which inures to their special private gain, to the special private gain of a principal by which they are retained, or to the special private gain of a relative or business associate. With respect to the Mayor, inasmuch as he was not at the meeting at which the Commissioners voted to pay the cost of publication of the Mayor's story, this section does not apply to him. See CEO 88-3. Because we have no indication that the vote would benefit any relative, principal, or business associate of any of the other Commissioners, the only issue to be determined is whether their votes inured to their own special private gain.
We previously have recognized that any gain or loss to a public officer resulting from a measure may be too remote and speculative to constitute "special gain." Thus, in situations where there was uncertainty at the time of the vote as to whether there would be any gain or loss to the public officer, we have found no special private gain to exist. For example, in CEO 93-7, we advised that a city commissioner was not prohibited from voting to increase the rent at a city-owned mobile home park located approximately four miles from a mobile home park that he owned. We advised that, where the commissioner's park was located four miles away and appeared to be smaller and have no amenities compared to those available at the city-owned park, it was premature and speculative to anticipate that the commissioner's vote would inure to his special private gain by justifying his charging higher rents at his park. Likewise, in CEO 91-16, we advised that a city council member was not prohibited from voting on the alignment of a proposed road project, where the member owned property in the area and would not be directly affected by the configuration of the roads. And in CEO 88-31, we advised that a city council member was not prohibited from voting on the annexation of property which adjoined property in which he owned an interest, where the developer seeking annexation planned to develop the property into a large planned unit development.
Under the circumstances presented here, we are of the opinion that any gain or loss resulting to the Commissioners from the sale and distribution of the book containing their pictures would be too speculative and remote to conclude that they would receive any "special" gain as a result of the City's paying for its publication. Whether or not the Commissioners stand to gain as a direct result of paying for the publication ultimately will be the result of many factors outside of their control.
Accordingly, we find that the City Commissioners were not prohibited by Section 112.3143(3)(a), Florida Statutes, from voting to pay for publishing the Mayor's book, which also contains their pictures.