CEO 97-2 -- January 23, 1997

 

CONFLICT OF INTEREST

 

POSTAL COORDINATOR USING PUBLIC

INFORMATION TO WRITE AND PUBLISH A

BOOK OF STREET DIRECTIONS

 

To: Judith L. Hatfield, Postal Coordinator for Santa Rosa County Department of Emergency Management (Milton)

 

SUMMARY:

 

Under the circumstances presented, no prohibited conflict of interest is created by a County Postal Coordinator's use of public information gained by virtue of her public employment to write and publish a book of street directions. Writing a book of street directions is not part of the postal coordinator's public responsibilities, and she is not creating data or providing information that is not public information kept in the normal course of her office's business. Furthermore, she is not providing any greater assistance to the members of her family who are doing research for her book than she would for any other member of the public who is endeavoring to complete a similar project.

 

QUESTION:

 

Would a prohibited conflict of interest be created were you, a postal coordinator for a County Department of Emergency Management, to use the public records of your office to write and publish a book of street directions?

 

Your question is answered in the negative.

 

In your letter of inquiry, you ask whether the Code of Ethics for Public Officers and Employees prohibits you from writing and publishing a book of street directions. You advise that you have been employed for more than five (5) years as a Postal Coordinator with the Santa Rosa County Department of Emergency Management. You write that your responsibilities include handling street name changes and numbering new and existing houses for addresses. Your written position description also indicates that included among your public responsibilities are the following:

 

         receiving telephone requests for street naming and house numbering;

         determining the geographical location of requests and locating them on the aerial map;

         assigning house numbers and street names;

         placing street names in the computer and keeping the computer's data updated in order to avoid any duplication in names;

         submitting street names to the County Commission for its approval;

         coordinating street naming and house numbering with the Postal Service, the Road and Bridge Department, the County Engineer, the Supervisor of Elections, Southern Bell, and the County's Grants Coordinator, in order to allow them to maintain updated records;

         renaming any road where duplication in names exists;

         traveling throughout the County in order to explain to those affected people why their addresses are being changed; and

         preparing an index of all of the information gathered concerning streets, subdivisions, etc.

 

You write that all of the information used to write your book has been obtained from the public records available in your office. These same records, you advise, are available to "any private citizen, group, or company, including mapping companies, Realtors, surveyors, appraisers, etc." You also advise that your office previously has assisted these same people, groups, and companies in obtaining information to publish map books. However, in the same manner that your office previously has assisted others in obtaining the information necessary to publish map books, you have assisted your family members in obtaining the necessary information for your book. The information available to the public, including your family, includes, but is not limited to, aerial maps, listings of street name changes, address changes, and index cards containing County street information.

You write that with the help of three (3) other family members, you have collected some of the information that you require to write the book. At times, you advise, because you are unable to collect this same information during regular working hours, it has been necessary for your family members to come to your County office during regular business hours in order to collect some of the necessary information. However, you assure us that your use of the information has and will continue to be done on your own time, rather than during your regular work hours. For example, you advise that you have worked nights and weekends to sort through the information obtained and you have used your own personal home computer to create a data base of addresses and street information.

Relevant to your inquiry are the following provisions of the Code of Ethics:

 

DISCLOSURE OR USE OF CERTAIN INFORMATION.--No public officer or employee of an agency, or local government attorney shall disclose or use information not available to members of the general public and gained by reason of his or her official position for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), Florida Statutes.]

 

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. [Section 112.313(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 or her public duties. [Section 112.312(9), Florida Statutes.]

 

Section 112.313(8) prohibits you from using any information for your personal gain which is gained through your official position or developed as part of your responsibilities as the Postal Coordinator for the County and which is not available to members of the general public. We have interpreted and applied this provision in a number of prior opinions.

In CEO 78-7, we found that because the company which published a compilation of the orders of the Public Service Commission together with headnotes, a digest, and a citator, would be publishing public records, no violation of Section 112.313(8) was created by an employee of the Public Service Commission owning an interest in the publishing company. In CEO 83-10, we also found no prohibited conflict of interest under Section 112.313(8) where the Director of the Department of Education's Division of Public Schools proposed the formation of a corporation which would develop, copyright, and market materials relating to public education to the general public. In finding no violation, we observed the following:

 

(1) the Director had tried to encourage the Department to publish similar materials, but the Department had not been able to obtain the necessary funding from the legislature;

(2) any information gained by the Director and used for publication was limited to official public records; and

(3) the sale of materials developed by the Department was not involved.

 

Similarly, in CEO 87-10, which referenced among others, CEO 83-10, we found that no prohibited conflict of interest would be created were the Bureau Chief of Research, Planning and Staff Development for the Division of Banking, Department of Finance, to contract with a trade association for nationally and State-chartered banks to develop a book of computer-generated maps that would be marketed to the association's membership. In finding no violation, we observed that

 

(1) the information that the Bureau Chief would be working with is available to members of the general public;

(2) the Bureau Chief's ability to apply the data was not the result of his public position--he had worked six (6) years in the private sector doing geographic analysis; and

(3) while the Bureau Chief experimented with the use of the association's data while working as a State employee, he found that the techniques had limited application to the work of his agency.

 

Because you have indicated that you would be using only public information in writing and publishing your book of street directions and because it does not appear that you would be taking unfair advantage of your position in order to benefit yourself and/or your family members through the use of the information gained by virtue of your public position (see CEO 95-11), under the circumstances presented we find that no violation of Section 112.313(8) would be created were you to use the public records of your office to write your book. It appears that writing a book of street directions is not part of your public responsibilities and that you are not creating data or providing information that is not public information kept in the normal course of your office's business. You also have provided assurances that you are not providing any greater assistance to the members of your family who are performing research for your book than you would for any other member of the public who was endeavoring to complete a similar project.

Nevertheless, we must caution you about Section 112.313(6), Florida Statutes, which is set forth above. In order for you to violate this provision, you must have used or attempted to use your position, as Postal Coordinator, or resources within your trust, to secure a special privilege or benefit, 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. Consequently, any actions taken by you that are intended by you or that can be construed to be intended by you to benefit either yourself or your family members in the conduct of their research, and which are inconsistent with the proper performance of your public duties, could give rise to a possible charge of misuse of position. In order to avoid this, we advise that you avoid collecting data or information for your book from your office after hours or on the weekends, removing any public records relevant to your project from your office so that you can work on them at home, and giving any greater priority to your family's research of the information required for your book than you are required to give to a member of the general public doing similar research.

Finally, we suggest that you seek further advice from us prior to your attempting to sell your book to the County, as such sales or contractual relationships may also run afoul of Sections 112.313(3) and 112.313(7)(a), Florida Statutes. Because you did not inquire about such sales or discuss any prospective customers of your book, we have not opined herein upon these provisions of the Code.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on January 23, 1997, and RENDERED this 28th day of January, 1997.

 

 

 

__________________________

Mary Alice Phelan

Chair