CEO 82-82 -- October 29, 1982

CONFLICT OF INTEREST

EXECUTIVE DIRECTOR OF DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES MAKING PERSONAL USE OF VEHICLE LOANED TO DEPARTMENT BY MANUFACTURER

To: Mr. James W. York, Acting Executive Director, Department of Highway Safety and Motor Vehicles

SUMMARY:

While no final conclusion can be drawn, as Section 112.313(6), Florida Statutes, requires a determination of intent, it appears that provision could be violated were the Executive Director of the Department of Highway Safety and Motor Vehicles to make personal use of an automobile which was loaned without charge to the Department by a major manufacturer for test purposes, incident to the Department's development of performance specifications for the competitive bid contract purchase of fleet law enforcement pursuit vehicles.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit you, as Executive Director of the Department of Highway Safety and Motor Vehicles, from operating for personal use an automobile which was loaned to the Department by a major manufacturer for test purposes without charge, incident to the Department's development of performance specifications for the competitive bid contract purchase of fleet law enforcement pursuit vehicles?

In your letter of inquiry you advise that in order to assist the Department of Highway Safety and Motor Vehicles in determining performance specifications for acquiring Highway Patrol vehicles, the three major automobile manufacturers have loaned the Highway Patrol test vehicles. The vehicles are supplied through local dealers, who perform any needed maintenance. Normally, the cars are kept for one or two weeks at the rate of one or two cars per manufacturer per year. One manufacturer has provided a vehicle for an endurance test of 25-30,000 miles in one instance.

You also advise that the Highway Patrol has no written policy for use of these test cars. No formal travel logs are maintained, and there is no contract between the patrol and the manufacturer as to vehicle use. In operating these vehicles, personal resources are generally used for providing gas and oil; on occasion a state credit card may be used. Following these tests, bid specifications are drawn, and invitations to bid are sent to dealers on the Department's mailing list or to other interested dealers for the award of purchase contracts on a competitive basis.

Finally, you advise that the personal use in which these vehicles could be placed would involve operation by your spouse, ostensibly to pick you up from an outlying area and to return you to Tallahassee, and/or use for personal trips or vacations which might include extensive out-of-state travel.

Initially, we note that if these vehicles were loaned to you for your personal use, the following prohibitions of the Code of Ethics for Public Officers and Employees would apply:

SOLICITATION OR ACCEPTANCE OF GIFTS. -- No public officer or employee of an agency or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service that is based upon any understanding that the vote, official action, or judgment of the public officer, employee, or candidate would be influenced thereby. [Section 112.313(2), Florida Statutes (1981), as amended by Chapter 82-98, Laws of Florida.]

UNAUTHORIZED COMPENSATION. -- No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity. [Section 112.313(4), Florida Statutes (1981).]

However, under the circumstances you have presented, it is our understanding that the vehicles have been loaned to the Department for the Department's use in testing prior to the purchase of vehicles for the Highway Patrol.

Under these circumstances, the relevant portions of the Code of Ethics provide as follows:

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 (1981).]

The term "corruptly" is defined to mean

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 (1981).]

As we observed in a previous opinion, CEO 77-129, 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. We are able to do this when a complaint has been filed concerning a given situation on the basis of evidence presented through investigation and hearing, but in rendering an advisory opinion we are handicapped by a lack of access to information concerning all the circumstances of the situation as well as information concerning the credibility of the individuals involved. Therefore, we will not make a final determination as to whether your use of these vehicles would result in a violation of Section 112.313(6), Florida Statutes. However, we will comment on the possible application of this statute to the situation you have presented.

In situations which appear similar, we have found that Section 112.313(6), Florida Statutes, would be violated. Examples of this would include Complaint No. 80-32, In re Carole Estrada, involving the use of a public vehicle for strictly private purposes, and Complaint No. 80-38, In re Ralph Miller, involving the use of a county-owned bulldozer on private property.

The use of vehicles loaned to the Department for testing by the Department would constitute the use of property or resources within your trust as a public employee. The use of the vehicles by your family or for personal trips or vacations would constitute a special benefit for you or your family. Finally, in the absence of a written policy established by the Department which would permit the personal use of these test cars, it appears that the personal use of these vehicles would be inconsistent with the proper performance of your public duties.

Accordingly, although we have been unable to provide you with a final answer to the question you have posed, it is our opinion that your personal use of these vehicles would present at least the appearance of the misuse of your public position. For this reason, we would suggest that the Department establish a written policy which would prohibit the personal use of such vehicles by employees of the Department, but which would permit the meaningful testing of these vehicles.