Submitted by Suanne Z. Thamm
Reporter – News Analyst
September 8, 2020
Recently, no doubt in the heat of the upcoming city elections, questions have been raised in the public regarding the legality of sitting Fernandina Beach City Commissioners expressing personal political opinions in public, whether in print or on blogs and/or social media. Along with this are related questions to the legality of endorsing candidates, contributing to candidates’ campaigns and actively engaging in electioneering for or against a candidate.
City Attorney Tammi Bach, who has researched state statutes, Attorney General Opinions and Division of Elections Opinions, has declared: “Bottom line, City Commissioners can express their personal political opinions on their personal time.”
In rendering her opinion, Bach cited several authorities.
Florida Statute 104.31 Political activities of state, county, and municipal officers and employees.
This statute states states in part:
(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 affecting 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, organization, agency, or person for political purposes. Nothing in this paragraph or in any county or municipal charter or ordinance shall prohibit an employee from suggesting to another employee in a noncoercive manner that he or she may voluntarily contribute to a fund which is administered by a party, committee, organization, agency, person, labor union or other employee organization 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.
Florida Statute 104.71 Remuneration by candidate for services, support, etc.; penalty
(1) It is unlawful for any person supporting a candidate, or for any candidate, in order to aid or promote the nomination or election of such candidate in any election, directly or indirectly to:
(a) Promise to appoint another person, promise to secure or aid in securing appointment, nomination or election of another person to any public or private position, or to any position of honor, trust, or emolument, except one who has publicly announced or defined what his or her choice or purpose in relation to any election in which he or she may be called to take part, if elected.
(b) Give, or promise to give, pay, or loan, any money or other thing of value to the owner, editor, publisher, or agent, of any communication media, as well as newspapers, to advocate or oppose, through such media, any candidate for nomination in any election or any candidate for election, and no such owner, editor, or agent shall give, solicit, or accept such payment or reward. It shall likewise be unlawful for any owner, editor, publisher, or agent of any poll-taking or poll-publishing concern to advocate or oppose through such poll any candidate for nomination in any election or any candidate for election in return for the giving or promising to give, pay, or loan any money or other thing of value to said owner, editor, publisher, or agent of any poll-taking or poll-publishing concern.
(c) Give, pay, expend, or contribute any money or thing of value for the furtherance of the candidacy of any other candidate.
(d) Furnish, give, or deliver to another person any money or other thing of value for any purpose prohibited by the election laws.
AGO 78-133 Municipal Officers endorsing candidates. Use of Official Titles in Publications Endorsing or Criticizing Candidates.
Section 104.31(1)(a), F. S., does not prohibit elective municipal officers from using their official titles in connection with the writing and publication of open letters or newsletters endorsing or criticizing candidates for public office since such conduct, standing alone, would not of itself evince the corrupt use of official authority or influence for the purpose of interfering with an election, or coercing or influencing votes, or affecting the result of the election. Moreover, s. 104.31(1)(c), F. S., exempts such conduct as “political activity” of exempted elective officials from the operation of s. 104.31(1)(a), F. S.
Division of Elections Opinion 90-10 Hosting a Fundraiser
An elected official may host a fund raiser for another candidate. The elected official may have his name on the invitation, offer his contribution list and invite people to the fund raiser. However, the elected official may not use his official authority to influence another person’s vote. In addition, the elected official may not advise a governmental officer or employee to contribute to a candidate.
While such expression is not illegal, is it wise?
When I first arrived in Fernandina Beach 26 years ago, more than one sitting commissioner told me that they would not get involved in any City Commission campaign except their own. Their reasons seemed valid both then and now.
On a pragmatic level, incumbent commissioners not facing an election understood that since they would remain on the Commission, they would be obliged to work with whichever candidates were elected. They did not want to begin a working relationship under a cloud if they had not supported the eventual winners.
On another level, commissioners understood that they themselves would also be judged by their endorsements. Realizing that not all their supporters might share their views on who would make the best City Commissioner, they remained silent, concentrating on maintaining their own political base.
Much has changed in our society since then. The nation appears to have been riven into tribes that do not speak to each other, much less work together, for a common good. Social media has become the driver of political discourse for many. Facebook and Twitter attract more eyeballs than traditional news sources. In a small town like Fernandina Beach, sometimes it seems that everyone is watching everyone else all the time. This atmosphere makes it difficult for elected officials to separate their personal lives and opinions from those that they lead due to the office they hold.
Many people have stated in a variety of contexts that perception often becomes reality. This has been said repeatedly with respect to downtown parking. Do we have a parking problem or a perception of a problem if people need to walk more than a block to their destination?’
And finally, an important question that must be asked is this: Is there a real distinction in the public’s understanding between the personal and official views of an elected official? So even though it is true that elected officials have an absolute right to a personal opinion, just like the rest of us, should they refrain from expressing it to avoid perception problems among the electorate?
That is a question each one of them must decide.
Certainly an elected official does not give up their right to express their personal view on local, regional and national matters. As Suanne noted, such offerings have risks and rewards depending on the audience reading/listening to the opinion. In many cases a written position provides the official with the opportunity to spell out the justification for their position and an acknowledgement of the other side of the argument. I remember that when he was a city commissioner, Eric Childers would always publish his preliminary position on agenda items well before the meeting date with the caveat that his position might change based on additional arguments/evidence presented by others before or during the meeting prior to the vote. Transparency as its best.
Certainly an elected official can have a personal viewpoint but vote an entirely different way if they believe that other side of the argument is what is best for the community as a whole. Sometimes an official vacates their previous position in order to demonstrate consensus of the body as a whole.
As far as endorsing another candidate, again potential risks and rewards. Frankly, the ability to form a majority coalition is one of the reasons I have always been opposed to the city altering the term of office for commissioners whereby (like this year’s election), three of the five seats are up. We have seen this in the past when a minority group of commissioners added to their ranks and became a majority and radically changed the direction of the commission. Will that happen this time? Guess we will just wait and see.
After reading the article above clearly it is illegal and unethical for an elected official to call for (directly or inferred) a boycott of businesses who support a candidate that that elected official does not support. We’ve seen evidence of this lately with certain Commissioners. Shameful.