CEO 01-2 -- January 30, 2001

UNAUTHORIZED COMPENSATION

DEPARTMENT OF CHILDREN AND FAMILY SERVICES EMPLOYEE RECEIVING COMPENSATION FROM COMPANY FOR PARTICIPATING IN SURVEY

To: Mr. Wayne Clemmer, Senior Human Services Program Specialist, Department of Children and Family Services (Tallahassee)

SUMMARY:

Section 112.313(4), Florida Statutes, would be violated where an employee of the Department of Children and Family Services accepted $100 for participating in a brief survey and where the company conducting the survey was doing so on behalf of its client, another company doing business with the Department. The agency employee potentially was in a position to benefit the contractor and ostensibly being paid $100 to participate in a survey, under the circumstances presented, would violate Section 112.313(4), Florida Statutes.

QUESTION:

Would a prohibited conflict of interest be created were you, an employee of a state agency, to accept payment for participating in a brief survey about an agency contractor?

Under the circumstances presented, your question is answered in the affirmative.

From the information accompanying your opinion request, we are advised that you are employed by the Department of Children and Family Services as a Senior Human Services Specialist in the Economic Self-Sufficiency Services Program Office. In that capacity, you administratively track all contracts within your unit to ensure that invoices are received and timely paid and that monitoring is scheduled and timely performed by contract managers. You relate that you are not in the chain of command to initiate, approve, or terminate any contracts and that you have no fiscal authority for any contracts, other than assisting contract managers in the development of contract documents and tracking them in the approval process.

Several months ago, you relate, you were contacted at work by a private management consultant group which invited you to participate in a survey the company was conducting on behalf of a client. You advise that the company sought your input about services provided by their client, its management and organization, name recognition, etc. You further relate that you previously had limited contact with the client/company's marketing director, whom you assisted in the process of becoming a contractor through the Department of Management Services, and with one of its employees who was involved in a small ($14,000) contract related to the WAGES (Work And Gain Economic Self-sufficiency, i.e., welfare-to-work) program. You were offered $100 for participating in the survey, and you question whether you can accept the money without violating the Code of Ethics for Public Officers and Employees.

The one provision of the Code of Ethics which is most applicable to your inquiry is Section 112.313(4), Florida Statutes, which provides:

UNAUTHORIZED COMPENSATION.‑‑No public officer, employee of an agency, or local government attorney or his or her spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer, employee, or local government attorney 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, employee, or local government attorney was expected to participate in his or her official capacity.

Section 112.313(4) prohibits you from accepting compensation when you know, or with the exercise of reasonable care should know, that is was given to influence your official actions.

In CEO 80-27, the Commission concluded that Section 112.313(4) would be violated where a university administrator received a "meal card" which could be used for unlimited free meals from a food service company contracting with the university. There, the Commission opined that Section 112.313(4) places the burden upon a public employee to exercise reasonable care in determining whether a particular payment or thing of value has been given with the intent to influence his official actions. When the donor is in a position to be benefited by the employee's actions, the employee should weigh the value of the thing received against the ostensible purpose for its being given.

Here, the facts suggest that a client of the firm conducting the survey was doing business with your agency. Although the survey was conducted by the management consulting firm, not the contractor, we cannot condone the indirect payment of money to an agency employee under these circumstances. You participated in the brief survey while on the job, and the questions you were asked centered on information and insights you developed in your public capacity. Although it is not clear how or why you were chosen to participate in the survey, it is conceivable that the money was offered to you to influence actions you were expected to take in your official capacity. While not a huge sum, $100 for answering a few questions about a company contracting with your agency seems disproportionate to the effort involved. At a minimum, the payment could have the effect of engendering your goodwill towards the contractor and, as someone who is involved in the administrative development and tracking of contracts, you are ostensibly in a position to benefit agency contractors.

We acknowledge that this may seem a harsh result and that you consider the offer of payment nothing more than a fortuitous "windfall." There is nothing to suggest that you solicited the payment, and we appreciate your candor in seeking our guidance. Notwithstanding, we would view your acceptance of the $100 payment for participating in the survey, under the circumstances presented, to violate Section 112.313(4), Florida Statutes.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on January 25, 2001 and RENDERED this 30th day of January, 2001.

___________________________________

Howard Marks

Chair