CAO 99-17
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CITY OF MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
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TO:
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Sergio Rodriguez
City Manager
Murray H. Dubbin . .J\. JV
City Attorney f\A'f1W"
Political Activity of City Employee on City Time
C.A.O. NO. 99-17
C.M.O. NO. 1-8/99
FROM:
SUBJECT:
DATE:
September 21, 1999
This memorandum has been written in response to your request for clarification of the laws
prohibiting public employees' political activity on City time.
I. Back&round
On June 17, 1999 City Manager Sergio Rodriguez sent the attached Memorandum No. 11-
1999 to all City employees for the purpose of "reminding" them of the proscription against engaging
in political activities on City time, and prohibiting anyone from "...speaking for the City, the
Administration or any City board or cominittee in connection with any political campaign".
On July 13, 1999 Diane Camber, Executive Director of the Bass Museum of Art, wrote a
letter on Bass letterhead endorsing the July 29, 199910ca1 sales tax referendum issue. Ms. Camber,
although subject to retention by the Bass Museum Board of Trustees, is considered a City
"employee" in that the Executive Director's salary and benefits are paid by the City of Miami Beach.
Moreover, inasmuch as the Bass Museum is maintained by the City of Miami Beach (per contract
dated July 8, 1963 between the City of Miami Beach and John and Johanna Bass), the Bass is de
facto a department of the City, under the Manager's control.
The City Manager's Office on July 27, 1999 responded to Ms. Camber's July 13, 1999 letter
by reminding her of the above-referenced Department Memorandum No. 11-1999, questioning her
advocacy of the subject political issue on Bass stationary.
II. Lea-a) Analysis
A. Section 104 31. Florida Statutes
Section 104.31, Florida Statutes, entitled "Political Activities of State, County, and Municipal
Officers and Employees" states in relevant part:
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(1)
No officer or employee of the state, or of any county or municipality thereof,
except as hereinafter exempted from provisions hereof, shall:
(a) Use his or her official authority or influence for the purpose
of interfering with an election or a nomination of office or
coercing or influencing another person's vote or effecting
the result thereof.
(b) Directly or indirectly coerce or attempt to coerce,
command, or advise any other officer or employee to pay,
lend, or contribute any part of his or her salary, or any
money, or anything else of value to any party, committee,
organizatipn, agency, or person for political purposes. ...
(c) Directly or indirectly coerce or attempt to coerce,
command, and advise any such officer or employee as to
where he or she might purchase commodities or to interfere
in any other way with the personal right of said officer or
employee.
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(3) - Nothing contained in this Section or any county or municipal charter shall
be deemed to prohibit any public employee from expressing his or her
opinions on any candidate or issue or from participating on any political
campaign during the employee's off-duty hours I, so long as such activities
are not in conflict with the provisions of Subsection (1) or Section 110.233.2
The Attorney General for the State of Florida has opined that in order to find a violation of Section
104.31, Florida Statutes, there must be evidence of a "corrupt" use of one's official authority or
influence for the purpose of interfering with an election, or coercing or influencing votes, or effecting
the results of the election. See Op. Att'y Gen. Fla. 78-133 (November 28, 1978). Accordingly,
Section 104.31, Florida Statutes, would prohibit corrupt influence by a public employee during on-
I Off-duty political activity is permissible so long as there has been no misuse of one's
official position:
It should be clear that the political activities of a public employee during his non-working
time (his own time so to speak) are not envisaged by Section 104.31, Florida Statutes. Unless
the public employee attempts to coerce money or any other thing of value from his colleagues
or seeks to misuse his official capacity in non-working hours, then it can hardly be said that
the state has an interest in his political activities. See Op. Att'y Gen. Fla. 072-62 and See,
Section 104.31(3), Florida Statutes,~.
2 Section 110.233 entitled "Political Activities and Unlawful Acts Prohibited" relates solely
to state employment.
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duty hours.3
B. Section 112.313(6), Florida Statutes
Although not containing any provision that expressly addresses the use of one's public
positio~ to engage in political activity, the Florida Code of Ethics prohibits misusing one's official
position:
No public officer, employee of an agency, or local government attorney 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
Section 104.3 I.
Section 112.313(6), Florida Statutes. A violation of Section 112.313(6) thus will occur where the
use of one's public office or the resources thereof is inconsistent with the proper performance of one's
official duties and corruptly undertaken. State of Florida Commission on Ethic's opinion 99-008
(June 8, 1999). The term "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 thus prohibits a public official or
employee from using or attempting to use his or her official position or any resources which may be
within his trust to secure a special privilege or benefit for himself or another, where his actions are
taken with wrongful intent for the purpose of obtaining a benefit for himself or another, and is
inconsistent with the proper performance of his public duties.
In. Conclusion
Both Section 104.31, Florida Statutes and Section 112.313(6), Florida Statutes require a
finding of "corrupt" political activity on a part of a public employee in misusing one's official
position. Whether a corrupt misuse of one's official position has occurred in a given situation
3 Passive political expressions (such as an employee's bumper sticker, lapel button, letter to
the editor, etc.), even ifdone during on-duty hours, are permissible under Section 104.31, Fla. Stat.,
inasmuch as said actions in and of themselves neither evidence corrupt behavior or an interference
with the performance of one's official duties:
As long as these "passive" acts of political expressions which occur during an employee's
working hours are indeed innocuous in relation to the employee's duties, they are not
prohibited by Section 104.31, Florida Statutes. However, when a good faith determination
is made that the employee's on-the-job political activities are detrimental to the efficient
exercise of his duties, the statutory proscriptions are viable and applicable. Op. Att'y Gen.
Fla. 072-62 (March 7, 1972).
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depends on how and for what purpose the use was made, rather than upon the fact of its use. The
facts presented to us including Ms. Camber's use of Bass letterhead do not in and of themselves
evidence a wrongful intent under the cited statutes. However, given the City Manager's subject
policy prohibiting any City employee speaking for the City in connection with any political
campaign,4 the use of Bass stationary (and presumably other City resources including typewriters,
secreta.rial staff) for the stated purposes was inconsistent with the performance of Ms. Camber's
public duties.
JKOIkw
':\A lTOIOLIJ\CAO-L TC\99017.CAO
Attachment
cc: Mayra Diaz Buttacavoli, Assistant City Manager
Richard Bender, Executive Assistant to the City Manager/Labor Relations
Mary Greenwood, Assistant for Labor Relations
Diane Camber, Director of Bass Museum
4 The City Manger's policy restricting political activities during on-duty hours (as well as
restricting the use of City resources including City stationary, typewriters, secretarial staff) is
consistent with ~ I 04.3 I, .Florida Statutes.
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