CEO 86-6 -- January 9, 1986

CONFLICT OF INTEREST

ASSISTANT PUBLIC DEFENDER RECEIVING PAYMENT FOR PUBLISHED COMMENTARY

To: Mr. Steven D. Levine, Chief Assistant Public Defender, Juvenile Court Division, 11th Judicial Circuit, Miami

SUMMARY:

The Code of Ethics was not violated where an assistant public defender received payment from a newspaper for a published commentary which he wrote concerning the juvenile justice system and the case of a client of the public defender's office, and where he donated the payment to a charitable organization. Under the circumstances presented, the assistant public defender did not use information not available to the general public which would have violated Section 112.313(8), Florida Statutes, and did not constitute a corrupt misuse of official position in violation of Section 112.313(6), Florida Statutes.

QUESTION:

Was the Code of Ethics for Public Officers and Employees violated where you, an Assistant Public Defender, received payment from a newspaper for a published commentary which you wrote concerning the juvenile justice system and the case of a client of the Public Defender's office and where you donated the payment to a charitable organization?

Your question is answered in the negative.

In your letter of inquiry you advise that you are the Chief Assistant Public Defender, Juvenile Court Division, for the Office of the Public Defender of the 11th Judicial Circuit. You also advise that a commentary which you authored recently was published in a local newspaper. The subject matter of the commentary was job- related, involving the juvenile justice system and the case of a client whom you represented, and your position with the Office of the Public Defender was identified by the newspaper. You completed work on the commentary on your own time and using your own materials, although you did discuss the contents and implications of the article with your employer during normal office hours. The commentary was delivered to the newspaper with a cover letter typed on office letterhead. In a telephone conversation with our staff, you advised that all information contained in the commentary concerning the case is a matter of court record.

Shortly after publication of the commentary, you received a check from the newspaper in the amount of $150. You had not requested payment from the newspaper and you were not aware of its payment policy before you submitted the commentary. The check was made out in your name, but was sent to you at your office address. The newspaper confirmed that the check was a writer's fee. When you received the check, you donated it to a charitable fund used to help needy children in the juvenile justice system. You question whether your acceptance and donation of the payment violated the Code of Ethics for Public Officers and Employees or whether it would be appropriate to seek to recover the fee from the charitable fund or from your personal savings and to tender it to your employer.

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

DISCLOSURE OR USE OF CERTAIN INFORMATION. -- No public officer or employee of an agency shall disclose or use information not available to members of the general public and gained by reason of his official position for his personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), Florida Statutes (1985).]

This provision prohibits a public employee from using information not available to members of the general public which is gained through his official position for his personal gain. However, you have advised that all information contained in the commentary about the case is a matter of court record. As the information was available to members of the general public, therefore, it is clear that this provision of the Code of Ethics was not violated by your writing the commentary.

The Code of Ethics also 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 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 (1985).]

For purposes of this prohibition, the term "corruptly" is defined as follows:

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 (1985).]

Under the circumstances, we find that your actions did not violate this provision of the Code of Ethics, as we find that writing the commentary was not inconsistent with the proper performance of your public duties and that apparently there was no intent to secure a special benefit for yourself.

There may be a question as to whom the funds properly belong. Our authority is limited to determining whether any provision of the Code of Ethics has been violated and does not extend to a determination of the ownership of these funds. Perhaps the Attorney General may be able to render an advisory opinion on this question.

Accordingly, we find that no prohibited conflict of interest was created by virtue of your writing the commentary and then accepting payment for its publication and donating that payment to a charitable organization.